Neither a release nor the Pennsylvania Equine Liability Act protects a stable for injuries when the stirrup broke.

Between a poorly written release, an Equine statute that requires proof the rider assumed the risk and the “cavalier” attitude of the defendant; the plaintiff will proceed to trial.

Melendez v. Happy Trails and Riding Center, Inc., 2016 U.S. Dist. LEXIS 131576

State: Pennsylvania, United States District Court for the Middle District of Pennsylvania

Plaintiff: Wilberto Melendez

Defendant: Happy Trails and Riding Center, Inc.

Plaintiff Claims: Negligence and Recklessness

Defendant Defenses: Release and Pennsylvania Equine Liability Protection Act

Holding: For the plaintiff

Year: 2016

The plaintiff was part of a group ride. Upon arrival he was told, he had to sign a release which he did. At the office where the plaintiff signed, the release signs were posed as required by the Pennsylvania Equine Activities Immunity Act. During the ride, the plaintiff asked the guides if he could gallop the horse and was told no several times. Eventually at the end of the ride, the plaintiff was allowed to gallop his horse.

Plaintiff then mounted the horse and participated in a guided group horseback ride for the next forty-five minutes without incident. On several occasions during the ride, Plaintiff requested permission from the guide to gallop the horse. Plaintiff was told it was too dangerous to do on the trail. At the end of the ride, one of the guides brought Plaintiff away from the group so that Plaintiff could canter the horse. Plaintiff then put the horse into a gallop and, while rounding a turn, a stirrup broke and Plaintiff fell from the animal.

While galloping the horse, the stirrup broke causing the plaintiff to fall incurring injuries.

The defendant filed a motion for summary judgment based on the release signed by the plaintiff and the Pennsylvania Equine Activities Immunity Act. The court denied the motion because the issue of the stirrup breaking could be considered reckless under Pennsylvania law.

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

The decision first looks at releases or exculpatory agreements under Pennsylvania law.

An exculpatory clause is valid if (1) the clause does “not contravene public policy”; (2) the contract is “between persons relating entirely to their own private affairs”; and (3) each party is “a free bargaining agent to the agreement so that the contract is not one of adhesion.

Under Pennsylvania, the language of the release must be clear in relieving notifying the possible plaintiff, he or she is releasing the defendant of negligence. “However, a valid exculpatory clause will nevertheless, be unenforceable “unless the language of the parties is clear that a person is being relieved of liability for his own acts of negligence.”

As in most states, releases are not favored and must conform to contract law. However, the term “not favored” is a term of art rather than a term used to determine if the release will be valid.

Contracts immunizing a party against liability for negligence are not favored by law and therefore established standards must be “met before an exculpatory provision will be interpreted and construed to relieve a person of liability for his own or his servants’ acts of negligence.”

In that regard Pennsylvania, courts have set up standards on how releases will be governed.

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

As in most other states, Pennsylvania does not allow a release to relieve a defendant for intentional or reckless acts. “Further, exculpatory clauses may not immunize a party for intentional or reckless behavior.

The plaintiff did not argue that the release was not valid. The court reviewed the release on its own and find it valid.

First, the agreement does not violate any public policy of Pennsylvania. In light of the Equine Activities Immunity Act–discussed in the next section–and similar statutes addressing other recreational activities, it is the policy of the state to encourage participation in those activities, despite their inherent danger, and assign the risk of loss to those who choose to participate in them.

Second, the agreement was between two private parties, Happy Trails and Mr. Melendez, concerning the purely private matter of renting a horse for recreational purposes. Finally, this is not a contract of adhesion. (“The signer I is under no compulsion, economic or otherwise, to participate, much less to sign the exculpatory agreement, because it does not relate to essential services, but merely governs a voluntary recreational activity.”). Thus, the agreement is facially valid.

The court also found Pennsylvania law allowed the use of releases for inherently dangerous activities. Horseback riding in Pennsylvania is an inherently dangerous activity.

The plaintiff’s argument centered on the inherent risks of horseback riding. Inherent, a limiting word, defines the risks that are part of horseback riding no matter what. Inherent risks are part of horseback riding and can rarely be reduced or modified by someone because of the horse. However, there are more than just inherent risks in any activity and the plaintiff argued that a stirrup breaking was not an inherent risk and not covered by the release or the statute.

How the bridle or saddle is attached to the horse is under the control of the stable, thus not an inherent risk of horseback riding in must states. How the horse responds; maneuvers or acts is an inherent risk of riding a horse.

Plaintiff contends that Defendant has failed to meet its burden to show either that defective equipment is an inherent risk of horseback riding, or that the language of the agreement shows that Plaintiff expressly assumed the risk of defective equipment.

Plaintiff points out that the agreement does not enumerate defective equipment as a risk. (Id.). Further, Plaintiff argues that a broken stirrup is not an inherent risk of horseback riding as demonstrated by the testimony of both Happy Trails’ owner and a Happy Trails’ employee who both stated they had never seen a stirrup break before. Thus, Plaintiff argues, because the risk was not foreseeable and was not expressly in the agreement, Plaintiff could not appreciate the risk and could therefore not assume it.

(For other articles on the use of “inherent” in a release see: Here is another reason to write releases carefully. Release used the term inherent to describe the risks which the court concluded made the risk inherently dangerous and voids the release and 2015 SLRA – Inherent Risk: Should the Phrase be in your Release?)

The court looked at the issue and rephrased it to a contract analogy. A contract must state the intention of the parties. A release is a contract.

…the contract must state the intention of the parties with the greatest particularity, beyond doubt by express stipulation, and no inference from words of general import can establish the intent of the parties”–is not met in this case because the agreement did not specifically enumerate the risk of defective equipment. Pennsylvania courts, however, have rejected this argument before.

The court then looked at the issue and found that defective equipment was not an inherent risk of horseback riding. This means if you use the term “inherent risk” in your release to describe all of the risks, claims based defective equipment would not be covered by your release in Pennsylvania. However, the release in this case was written broadly so it was not an issue.

Concerning the case at hand, while this Court agrees with Plaintiff that the provision of defective equipment is not an inherent risk in the sport of horseback riding, this point is not dispositive. As one Pennsylvania court explained, “the assumption of the risk doctrine bars a plaintiff from recovering in tort for risks inherent to a certain activity. In contrast, the explicit, broad, and valid language of the exculpatory clause bars all claims, regardless of whether they arise from an inherent risk.”

Pennsylvania courts have held that a release protects against claims for inherent as well as non-inherent risks if written to include those risks, and this release was written broadly.

The plaintiff argued the release should be read narrowly because the release did not identify defective equipment as a risk to be covered. However, the court found that every risk needs not be reviewed or identified in a release.

Plaintiff advances a more narrow reading of the agreement and argues that because the agreement does not enumerate defective equipment as a risk, he did not expressly assume it. The Chepkevich Court, however, was clear that no illustrations or examples are required to give common terms effect in an exculpatory agreement. “All claims” and “negligence” are commonly used terms and Pennsylvania law does not require drafters of exculpatory clauses to enumerate every possible contingency that is included in broader language they choose to use.

The next point the plaintiff argued was the actions of the defendant amounted to recklessness and as such voided the release. The court defined recklessness under Pennsylvania law as:

Recklessness is distinguishable from negligence on the basis that recklessness requires conscious action or inaction which creates a substantial risk of harm to others, whereas negligence suggests unconscious inadvertence.”

Pennsylvania uses the term recklessness to define acts of the defendant that exceed the scope of a release. The majority but not all states use the term gross negligence.

This argument the court did accept. The court found that it was the defendant’s responsibility to inspect the equipment, and the defendant could not provide any evidence of any inspection.

Defendant’s bare assertion that its actions do not rise to the level of recklessness does not satisfy its burden to show that there is no genuine dispute as to a material fact. The record shows that Happy Trails provided a saddle for Plaintiffs ride, that a stirrup on that saddle broke during the ride, and that Plaintiff fell from a horse when the stirrup broke. It was the responsibility of Happy Trails, not the customer, to inspect the equipment, but no records of inspections or repairs were kept, nor was the Happy Trails’ owner able to say if any inspection of the specific stirrup occurred on the day of the accident.

The court on this same topic went on looking at the facts to determine other reckless acts of the defendant. In that review, the court added a comment about the attitude of the defendant/owner of Happy Trails and described his attitude as “cavalier.”

He was unable to say where he procured the saddle in question, how long he had had it, or how old it was. Additionally, Happy Trails’ owner displayed a somewhat cavalier attitude towards safety, asserting that customers assume all risks associated with the activity, including equipment breaking, staff failing to put equipment on the horses correctly, and even staff failing to provide basic equipment like stirrups or a bridal. Viewing the record in a light most favorable to Plaintiff, a question of fact therefore remains as to whether Defendant’s action rose to the level of recklessness

Finding a lack of knowledge about the age or condition of the defendant’s equipment, no record of inspecting or maintaining the equipment and the attitude of the defendant allowed the court to reach a conclusion that the actions of the defendant would be found by a jury to be reckless. As such, a motion for summary judgment could not be granted if there were “genuine dispute as to any material fact.”

The next issue was the application of the Pennsylvania Equine Activities Immunity Act to the case. The court could find no other case law in Pennsylvania that looked at the application of the Pennsylvania Equine Activities Immunity Act to defective equipment. Consequently, the court had to interpret the statute to see if the language of the statute covered defective equipment.

The Pennsylvania Equine Activities Immunity Act like most equine liability protection acts provides immunity to horse owners, stables, etc., for the actions of the animals. (Since Equine Acts have been created, they have been 100% effective. No horses have been sued. Lawsuits against horse owners have increased.) However, the Pennsylvania statute places a burden on the stable or horse owner to prove knowledge of the risk for the immunity to apply.

Most equine protection acts are written to say that when on a horse, or at places where horses, llamas, mules, etc., are, you assume the risk of the actions of the animal. By assuming the risk, the defendant owner is immune from liability for the plaintiff’s injuries. The Pennsylvania statute is different. The Pennsylvania statute states “liability for negligence shall only be barred where the doctrine of knowing voluntary assumption of risk is proven.”

This requirement puts a burden upon the horse owner to provide additional education to the rider.

The court looked at the definition of assumption of risk as defined in the Restatement of Torts, which found four different definitions or as the Restatement defines them doctrines of assumption of the risk.

The Restatement outlines four varieties of the doctrine, the first two of which are of interest in this case. The first, express assumption of risk occurs when lithe plaintiff has given his express consent to relieve the defendant of an obligation to exercise care for his protection, and agrees to take his chances as to injury from a known or possible risk.” Id. (emphasis added). This is the type of assumption of risk examined above in respect to the agreement signed by Plaintiff. The second, implied assumption of risk, occurs when lithe plaintiff has entered voluntarily into some relation with the defendant which he knows to involve the risk, and so is regarded as tacitly or impliedly agreeing to relieve the defendant of responsibility, and to take his own chances.”

The first type of assumption of risk the court found that applied here was express assumption of risk. Express assumption of risk occurs when the plaintiff has consented to the risk. Usually, this consent is given by writing, if written property as part of a release.

The second type applicable in this case was implied assumption of the risk. Implied assumption of the risk has no exactness to the risk assumed. The plaintiff knows there is risk, and the defendant hopes the plaintiff knows of the explicit risk that may injure the plaintiff or that caused the plaintiff’s injuries. If the plaintiff had no knowledge of the risk, then the plaintiff cannot assume the risk.

It is self-evident that a person “cannot be found to have implicitly assumed a risk of which he had no knowledge.” (plurality opinion). As such, lithe defense of assumption of the risk requires that the defendant show that the plaintiff was subjectively aware of the facts which created the danger and…must have appreciated the danger itself and the nature, character and extent which made it unreasonable.”

In this case, there was no evidence that the plaintiff knew of the risk. That risk was of equipment failure that the stirrup would break. Consequently, the plaintiff could not assume the risk.

Thus, for a defendant to prevail on a summary judgment motion based on the assumption of risk defense, it must be “beyond question that the plaintiff voluntarily and knowingly proceeded in the face of an obvious and dangerous condition.”

In short, to preclude Plaintiffs negligence action under the EAIA, Defendant must show that Plaintiff knew that the equipment he was provided with might break and voluntarily continued with the horseback ride in spite of that knowledge.

Because the risk that injured the plaintiff was outside of the risks assumed by the plaintiff, the defense of assumption of the risk did not apply. As such, the Pennsylvania Equine Activities Immunity Act did not provide the defendant with any protection.

With the release not valid and the Pennsylvania Equine Activities Immunity Act not providing any protection both defenses of the defendant failed. The defendant’s motion for summary judgment was denied.

So Now What?

This case would not have meant anything if the plaintiff had simply fallen off the horse. Both the release and the Pennsylvania Equine Activities Immunity Act would have prevented recovery if a claim had even been made.

But broken equipment always creates a different issue. Here it created an issue of whether the actions of the defendant were reckless and proved the plaintiff did not assume the risk.

Another important issue is courts put into their decision the facts they find persuasive or at least interesting.  There were several facts in the decision that did not alter or affect the decision on its face, but important enough for the court to identify them anyway. I always find these facts as instructional and a good indication of something that was not enough for the judge to argue but important anyway.

I also believe that they may not have any legal value, but if written into the decision by the judge, they had to have an impact on the judge’s thinking, and consequently, those issues did affect the outcome of the case.

In this decision those facts included:

After his group arrived, Plaintiff went into the stable’s office to register. Plaintiff was presented with a form (the “agreement”), which stated, in pertinent part….

Combined with the next sentence:

An employee of Happy Trails informed Plaintiff that Plaintiff must sign the agreement in order to go horseback riding. Plaintiff signed the agreement.

Meaning, the plaintiff was not told in advance he was going to be required to sign a release.

Another one was the plaintiff being told galloping was too dangerous yet he was eventually allowed to gallop his horse.

On several occasions during the ride, Plaintiff requested permission from the guide to gallop the horse. Plaintiff was told it was too dangerous to do on the trail.

Plaintiff then put the horse into a gallop and, while rounding a turn, a stirrup broke and Plaintiff fell from the animal.

If galloping the horse was too dangerous earlier, what changed? More importantly, galloping the horse led to the broken stirrup which led to the injury.

And then there are the straight out in your face statements a court rarely makes.

Additionally, Happy Trails’ owner displayed a somewhat cavalier attitude towards safety, asserting that customers assume all risks associated with the activity, including equipment breaking, staff failing to put equipment on the horses correctly, and even staff failing to provide basic equipment like stirrups or a bridal.

If this statement or something like it has been at the beginning, you would have known immediately that the defendant was going to lose. Never walk into a courtroom looking like the bad guy and never give the court proof, such as this, that you are.

For other Equine Liability Act articles see:

$1.2 M award in horseback riding fatality in Wyoming                                     http://rec-law.us/1fE4ncB

$2.36 M awarded to boy kicked by horse during inner-city youth program   http://rec-law.us/1lk7cTP

A specific statute, a badly written release and an equine liability statute sink instructors and business in horse riding accident.                                                                                             http://rec-law.us/SJZCkU

Decisive Supreme Court Decision on the Validity of Releases in Oklahoma                      http://rec-law.us/19gxvkT

Equine laws stop suit against horse, outfitter still sued                                    http://rec-law.us/XjgJvw

Good News ASI was dismissed from the lawsuit                                               http://rec-law.us/131HKWH

Hawaii attempts to limit liability increases the amount of money every injured party will recover. Legislation to limit liability lost recreation business the opportunity to use a release         http://rec-law.us/1nvfCV5

Hawaii’s deceptive trade practices act sends this case and release back to the trial court                                                                                                                                                http://rec-law.us/Z3HdQj

Indiana Equine Liability Statute used to stop litigation                                     http://rec-law.us/12UFp1N

Lying in a release can get your release thrown out by the court.                   http://rec-law.us/11ysy4w

Michigan Equine helped the plaintiff more than the stable and helped prove there may be gross negligence on the part of the defendant                                                             http://rec-law.us/1ZicaQs

Parental control: should you, are you accepting responsibility for kids and when you should or can you not.                                                                                                                             http://rec-law.us/1fteMth

Release saves riding school, even after defendant tried to show plaintiff how to win the case.  http://rec-law.us/14DC7Ad

What do you think? Leave a comment.

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Melendez v. Happy Trails and Riding Center, Inc., 2016 U.S. Dist. LEXIS 131576

Melendez v. Happy Trails and Riding Center, Inc., 2016 U.S. Dist. LEXIS 131576

Wilberto Melendez, Plaintiff, v. Happy Trails and Riding Center, Inc., Defendant.

3:14-CV-1894

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

2016 U.S. Dist. LEXIS 131576

September 26, 2016, Decided

September 26, 2016, Filed

CORE TERMS: trail, summary judgment, exculpatory, recklessness, equine, stirrup, stable, immunity, genuine, horse, horseback riding, recreational, animal, material fact, skiing, ride, assumption of risk, faulty, broken, ski, rider, inherent risk, exculpatory clause, riding, sport, skier, enumerate, counter, rental, entity

COUNSEL:  [*1] For Wilberto Melendez, Plaintiff, Counterclaim Defendant: Robin A. Feeney, LEAD ATTORNEY, FINE & STAUD LLP, PHILADELPHIA, PA.

For Happy Trails and Riding Center, Incorporated, Defendant, Counterclaim Plaintiff: Dennis M. Marconi, Barnaba & Marconi, LLP, Trenton, NJ.

JUDGES: Robert D. Mariani, United States District Judge.

OPINION BY: Robert D. Mariani

OPINION

MEMORANDUM OPINION

I. Introduction and Procedural History

On September 30, 2014, Plaintiff, Wilberto Melendez, filled a one count Complaint with this Court against Defendant, Happy Trails and Riding Center, lnc.1 (Doc. 1). The Complaint alleges that Plaintiff suffered injury as a result of Defendant’s negligence in its operation of a business which rented horses and equipment to the public for recreational horseback riding. After the conclusion of fact discovery, Defendant filed a Motion for Summary Judgment (Doc. 19) and supporting brief (Doc. 20) on October 29, 2015. Plaintiff filed a Brief in Opposition (Doc. 22) and Defendant filed a Reply. (Doc. 23). Oral argument on the matter was held on April 4, 2016.

1 Defendant points out that the business is owned and operated by Randolph Bennett, d/b/a Happy Trails Stables, and was incorrectly pleaded as Happy Trails Riding [*2]  Center, Inc. For the purposes of this motion, the error, if any, is immaterial and the opinion will refer to Defendant as “Defendant” or “Happy Trails.”

The motion is now ripe for decision. For the reasons set forth below the Court will deny Defendant’s motion in its entirety.

II. Statement of Undisputed Facts

In accordance with Local Rule 56.1, Defendant submitted a Statement of Material Facts in Support of its Motion for Summary Judgment, (Doc. 20), as to which it contends that there is no genuine dispute for trial. Plaintiff submitted a response, a Counter Statement of Facts, (Doc. 22), with the result being that the following facts have been admitted, except as specifically noted:

Plaintiff, Wilberto Melendez, went to Defendant’s stable on May 31, 2014, for the purpose of going horseback riding. (Doc. 20, ¶¶ 1, 2). After his group arrived, Plaintiff went into the stable’s office to register. (Id. at ¶ 5). Plaintiff was presented with a form (the “agreement”), which stated, in pertinent part:

AGREEMENT FOR PARTICIPATION AND\OR VOLUNTEERS [sic] I RELEASE AND DISCHARGE, ACCEPTANCE OF RESPONSIBILITY AND ACKNOWLEDGE [sic] OF RISK:

IN CONDERATION [sic] FOR BEING PERMITTED TO UTILIZE THE FACILITIES AND EQUIPMENT [*3]  OF HAPPY TRAILS RIDING STABLES AND TO ENGAGE IN HORSEBACK RIDING, AND ALL RELATED ACTIVITIES.

….

1. I understand and acknowledge that the activity I am voluntarily engage [sic] in as a participant and/or [sic] bears certain know [sic] risk [sic] and unanticipated risks which could result in jury, [sic] death, illness, or disease, physical or mental, or damage to myself, to my property, or to spectators or other third parties. I understand and acknowledge those risk [sic] may result in personal claims against “HAPPY TRAILS STABLES” or claims against me by spectators or other third parties.

1. [sic] The nature of the activity itself, including the possible risks to you the rider.

A. The animal may be startled by unforeseen or unexpected noises from other animals, people, vehicles, activities and as a result you the rider may be hurt or injured should the animal react to said noises or activity, by running, bucking, rolling, or kicking, etc.

B. That you as the rider realizes [sic] that the animal is reacting to your physical instructions, conduct, and verbal instructions and commands, and therefore, the animal will respond in accordance with your reactions or commands. However, there are [*4]  times when the animal may be confused or distracted during course [sic] of your instructions and/or commands.

C. You the rider understands [sic] that an animal may kick or bite you the rider, or you the pedestrian, and that other animals which may be on tour, could kick or bite you the rider and/or pedestrian.

D. You the rider are aware that physical conditions of the trails may cause injury or risk to you, should these physical conditions such as low tree limbs, bushes, or other type of natural growth come in contact with animal [sic] or yourself.

2. I hereby release and discharge Happy Trails Stables, instructors, trail guides, stable managers, employees, owners of the horses and related equipment and land utilized for Happy Trails Stables activities, hereinafter referred to as the “Released Parties,” from any and all claims, demands, or cause of action that I, or any of my heirs, successors or assigns, [sic] may hereafter have for injuries and/or damages arising out of my participation in Happy Trails activities, including but not limited to, loses caused by negligence of the released parties.

3. I further agree that I, my heirs, successors, or assigns, [sic] will not sue or make claim [*5]  against the Released Parties for damage or other loses sustained as a result of my participation in Happy Trails activities.

….

4. I understand and acknowledge that Happy Trails activities have inherent dangers that no amount of cares, [sic] caution, instruction, or expertise can eliminate and I expressly and voluntarily assume all risk of personal injury or death sustained while participating in “Happy Trails Stables” activities weather [sic] or not caused by negligence of the Released Parties ….

….

6. I hereby expressly recognize that this Agreement and Release of Liability is a contract pursuant to which I have released any and all claims against the Released Parties resulting from my participation in Happy Trails activities including any claims caused by negligence of the Released Parties. I also assume the risk of the equine activities pursuant to the [sic] Pennsylvania law.

(Id. at ¶¶ 5, 11; Doc. 20-7) (emphasis original). An employee of Happy Trails informed Plaintiff that Plaintiff must sign the agreement in order to go horseback riding. (Doc. 20, 5). Plaintiff signed the agreement. (Id. at ¶ 8). In addition to the agreement, there were signs posted inside the office, outside [*6]  the office, and by the stable which read “You assume the risk of equine activities pursuant to Pennsylvania Law.” (See id. at ¶¶ 12-15; Doc. 20-8).

After completing the agreement, Plaintiff waited while a Happy Trails employee saddled up a horse. (Doc. 20, ¶ 17). Plaintiff then mounted the horse and participated in a guided group horseback ride for the next forty-five minutes without incident. (Id. at ¶¶ 19, 21). On several occasions during the ride, Plaintiff requested permission from the guide to gallop the horse. (Id. at ¶¶ 22, 23). Plaintiff was told it was too dangerous to do on the trail. (Id.). At the end of the ride, one of the guides brought Plaintiff away from the group so that Plaintiff could canter the horse. (Id. at ¶ 26). Plaintiff then put the horse into a gallop and, while rounding a turn, a stirrup broke and Plaintiff fell from the animal. (id. at ¶¶ 27-29).

Plaintiff maintains that the stirrup Defendant provided him was faulty or defective and that this was the cause of his fall. (Doc. 22 at 1). Plaintiff further maintains that this fall resulted in fractured ribs and pneumothorax. (Id. at 3).

III. Standard of Review

Through summary adjudication, the court may dispose of those [*7]  claims that do not present a “genuine dispute as to any material fact.” Fed. R. Civ. P. 56(a). “As to materiality, ….[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986).

The party moving for summary judgment bears the burden of showing the absence of a genuine issue as to any material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). Once such a showing has been made, the non-moving party must offer specific facts contradicting those averred by the movant to establish a genuine issue of material fact. Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888, 110 S. Ct. 3177, 111 L. Ed. 2d 695 (1990). Therefore, the non-moving party may not oppose summary judgment simply on the basis of the pleadings, or on conclusory statements that a factual issue exists. Anderson, 477 U.S. at 248. “A party asserting that a fact cannot be or is genuinely disputed must support the assertion by citing to particular parts of materials in the record…or showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1)(A)-(B). In evaluating whether summary judgment should be granted, “[t]he court need consider only the cited materials, but it may consider other materials in the record.” Fed. R. Civ. P. 56(c)(3). “Inferences [*8]  should be drawn in the light most favorable to the non-moving party, and where the non-moving party’s evidence contradicts the movant’s, then the non-movant’s must be taken as true.” Big Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992), cert. denied 507 U.S. 912, 113 S. Ct. 1262, 122 L. Ed. 2d 659 (1993).

However, “facts must be viewed in the light most favorable to the nonmoving party only if there is a ‘genuine’ dispute as to those facts.” Scott v. Harris, 550 U.S. 372, 380, 127 S. Ct. 1769, 167 L. Ed. 2d 686 (2007). If a party has carried its burden under the summary judgment rule,

its opponent must do more than simply show that there is some metaphysical doubt as to the material facts. Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial. The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact. When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.

Id. (internal quotations, citations, and alterations omitted).

IV. Analysis [*9]

Plaintiffs complaint alleges that Defendant was negligent in providing broken or defective equipment–the stirrup–to Plaintiff, which directly resulted in his injury. (Doc. 1, ¶ 20). Defendant puts forth two arguments that it maintains are separate and independent grounds for summary judgment. First, Defendant argues that the agreement that Plaintiff signed prior to the horseback ride insulates Defendant from liability under these facts. (Doc. 20 at 9). Second, Defendant argues that, pursuant to 4 P.S. §§ 601-606 (hereinafter “Equine Activities Immunity Act,” “EAIA,” or “the Act”), Happy Trails is immune from liability as a provider of equine activities. (Id.).

A. Exculpatory Agreement

An exculpatory clause is valid if (1) the clause does “not contravene public policy”; (2) the contract is “between persons relating entirely to their own private affairs”; and (3) each party is “a free bargaining agent to the agreement so that the contract is not one of adhesion.” Chepkevich v. Hidden Valley Resort, L.P., 607 Pa. 1, 2 A.3d 1174, 1189 (Pa. 2010) (quoting Topp Copy Prods., Inc. v. Singletary, 533 Pa. 468, 626 A.2d 98, 99 (Pa. 1993)). However, a valid exculpatory clause will nevertheless be unenforceable “unless the language of the parties is clear that a person is being relieved of liability for his own acts of negligence.” Id. (quoting Topp Copy Prods., 626 A.2d at 99). Contracts immunizing a [*10]  party against liability for negligence are not favored by law and therefore established standards must be “met before an exculpatory provision will be interpreted and construed to relieve a person of liability for his own or his servants’ acts of negligence.” Dilks v. Flohr Chevrolet, Inc., 411 Pa. 425, 192 A.2d 682, 687 (Pa. 1963). Thus, Pennsylvania courts have established several standards governing the enforceability of exculpatory clauses:

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

Tayar v. Camelback Ski Corp., 616 Pa. 385, 47 A.3d 1190, 1196 (Pa. 2012) (quoting Topp Copy Prods., 626 A.2d at 99). Further, exculpatory clauses may not immunize a party for intentional or reckless behavior. Id. at 1202-03.

Defendant contends that the agreement Plaintiff signed is valid, enforceable, and encompasses broken equipment. (Doc. 20 at 13-16). Therefore, Defendant argues, Plaintiffs negligence [*11]  claim is barred and Happy Trails is entitled to summary judgment. (Id. at 16).

Plaintiff does not appear to argue that the agreement is not valid on its face. Nor should he, considering that the agreement easily satisfies the validity requirements under Chepkevich. First, the agreement does not violate any public policy of Pennsylvania. In light of the Equine Activities Immunity Act–discussed in the next section–and similar statutes addressing other recreational activities, it is the policy of the state to encourage participation in those activities, despite their inherent danger, and assign the risk of loss to those who choose to participate in them. Cf. Chepkevich, 2 A.3d at 1191 (finding that, in light of a statute that preserves the assumption of risk defense in the context of downhill skiing, it is “the clear policy of this Commonwealth . . .to encourage the sport and to place the risks of skiing squarely on the skier.”). Further, Pennsylvania courts have held as valid similar exculpatory agreements in the context of a variety of other inherently dangerous recreational activities. See, e.g., id. (downhill skiing); Wang v. Whitetail Mountain Resort, 2007 PA Super 283, 933 A.2d 110, 113-14 (Pa. Super. Ct. 2007) (snow tubing); Valeo v. Pocono Int’l Raceway, Inc., 347 Pa. Super. 230, 500 A.2d 492, 492-93 (Pa. Super. Ct. 1985) (auto racing); Nissley v. Candytown Motorcycle Club, Inc., 2006 PA Super 349, 913 A.2d 887, 889-91(Pa. Super. Ct. 2006) (motorcycle riding).

Second, the agreement was between two private [*12]  parties, Happy Trails and Mr. Melendez, concerning the purely private matter of renting a horse for recreational purposes. Finally, this is not a contract of adhesion. See Chepkevich, 2 A.3d at 1190-91 (“The signer I is under no compulsion, economic or otherwise, to participate, much less to sign the exculpatory agreement, because it does not relate to essential services, but merely governs a voluntary recreational activity.”). Thus, the agreement is facially valid.

Turning to enforceability, Plaintiff contends that Defendant has failed to meet its burden to show either that defective equipment is an inherent risk of horseback riding, or that the language of the agreement shows that Plaintiff expressly assumed the risk of defective equipment. (Doc. 22 at 11). Plaintiff points out that the agreement does not enumerate defective equipment as a risk. (Id.). Further, Plaintiff argues that a broken stirrup is not an inherent risk of horseback riding as demonstrated by the testimony of both Happy Trails’ owner and a Happy Trails’ employee who both stated they had never seen a stirrup break before. (Id. at 12-13). Thus, Plaintiff argues, because the risk was not foreseeable and was not expressly in the agreement, Plaintiff could [*13]  not appreciate the risk and could therefore not assume it. (Id. at 13).

Plaintiffs argument essentially states that the second element from Tayar –that “the contract must state the intention of the parties with the greatest particularity, beyond doubt by express stipulation, and no inference from words of general import can establish the intent of the parties”–is not met in this case because the agreement did not specifically enumerate the risk of defective equipment. Pennsylvania courts, however, have rejected this argument before. See Chepkevich, 2 A.3d at 1193-94.

In Chepkevich, a skier, Lori Chepkevich, sued a ski resort after she fell from a ski lift and was injured. Id. at 1175-76. She claimed her injury occurred because an employee promised to stop the ski lift briefly to allow Chepkevich to help a child board the lift and then the employee failed to do so. Id. Prior to the accident, Chepkevich had signed a document titled “RELEASE FROM LIABILITY” which stated, in pertinent part,

Skiing, Snowboarding, and Snowblading, including the use of lifts, is a dangerous sport with inherent and other risks which include but are not limited to [certain enumerated risks]…. I agree to accept all these risks and agree not to sue Hidden Valley [*14]  Resort or their employees if injured while using their facilities regardless of any negligence on their part.

Id. at 1176. The Pennsylvania Supreme Court first rejected Chepkevich’s argument that she did not assume the specific risk that caused her injury and instead found that a fall from a ski lift was an inherent risk in the sport of skiing. Id. at 1188. Therefore, the Court found that the suit was barred by the Skier’s Responsibility Act, 42 PA. Cons. Stat. Ann. § 7102(c), which preserves the common law assumption of the risk defense in the context of downhill skiing. Chepkevich, 2 A.3d at 1187-88.

Turning to an alternative ground for summary judgment–the release–the Chepkevich Court held that the term “negligence” did not require any definition or illustration to be given effect. Id. at 1193. Indeed, reversing the court below on that point, the Court found “no reason to require the drafters of exculpatory releases to provide definitions and context for commonly used terms such as ‘negligence.”‘ Id. The Court then found that the plain language of the release encompassed Chepkevich’s claim for negligence and therefore barred the claim. Id. at 1194-95. Because the Court had already found that the risk involved was inherent, the Court found it unnecessary to address the merits of Chepkevich’s [*15]  final argument “that the Release exempted Hidden Valley from liability only when its negligence gave rise to a risk otherwise inherent to the sport of skiing.” Id. at 1193-94.

Concerning the case at hand, while this Court agrees with Plaintiff that the provision of defective equipment is not an inherent risk in the sport of horseback riding, this point is not dispositive. As one Pennsylvania court explained, “the assumption of the risk doctrine bars a plaintiff from recovering in tort for risks inherent to a certain activity. In contrast, the explicit, broad, and valid language of the exculpatory clause bars all claims, regardless of whether they arise from an inherent risk.” Nissley, 913 A.2d at 892 (footnote and internal citations omitted). Thus, as long as the language of the exculpatory agreement applies, any inherent risk analysis is superfluous. The fact that the court in Chepkevich found it unnecessary to its holding to address the plaintiffs argument that non-inherent risks cannot be released in exculpatory agreements does not affect this analysis. As that court saw no need to overturn the language in Nissley, this Court sees no reason not to follow it.

As for enforceability of the agreement, in the realm of recreational [*16]  activities, Pennsylvania has upheld expansive language in exculpatory agreements. See, e.g., Nissley, 913 A.2d at 890-91 (upholding motor cycle club’s exculpatory agreement in a negligence action when the release stated that plaintiff “hereby give[s] up all my rights to sue or make claim”); Zimmer v. Mitchell & Ness, 385 A.2d 437, 440 (Pa. Super. Ct. 1978), aff’d per curiam, 416 A.2d 1010 (1980) (upholding ski rental shop’s exculpatory agreement in a negligence action when the release stated that skier released defendant from “any liability”); Valeo, 500 A.2d at 492-93 (upholding race track’s exculpatory agreement in a negligence action where race car driver signed an agreement releasing “defendants ‘from all liability …for all loss or damage'”).

Here, Plaintiff signed an agreement that he knew to be a waiver. (Doc. 20-2 at 51-53; Doc. 20-7). Paragraph two of the agreement stated that Plaintiff released Happy Trails “from any and all claims, demands, or cause of action that I…may hereafter have for injuries and/or damages arising out of my participation in Happy Trails activities, including but not limited to, loses caused by negligence.” Further, paragraph six states that Plaintiff “hereby expressly recognize[s] that this Agreement and Release of Liability is a contract pursuant to which I have released any and all claims against the [*17]  Released Parties resulting from my participation in Happy Trails activities including any claims caused by negligence.” Plaintiff has alleged that Defendant was negligent in providing him defective equipment during his trail ride. The plain language of the agreement signed by Plaintiff releases Defendant from “all claims” including those “caused by negligence.” Thus, Plaintiffs claim, in as much as it is alleging that Defendant acted negligently, is encompassed by the exculpatory language of the agreement and therefore barred.2

2 This Court notes that there is some language in Chepkevich that seems to support Plaintiffs argument. As an aside, the Chepkevich Court states that “the risk [in this case] was not so unexpected, or brought about in so strange a manner, as to justify placing this injury beyond the reach of the plain language of the Release.” Chepkevich, 2 A.3d at 1194. Plaintiff has pointed out that a broken stirrup is a very uncommon, and therefore unexpected, occurrence. (Doc. 22 at 12-13). Nevertheless, because Chepkevich does not give any standards for what type of risks fall beyond the realm of the plain language of an exculpatory agreement, this Court must turn to other cases. This Court finds  [*18]  Zimmer v. Mitchell and Ness  instructive.

In Zimmer, a skier, Joseph Zimmer, sued a ski rental company after the bindings on the skis he rented failed to release as they were supposed to during a fall, causing him substantial injury. Zimmer, 385 A.2d at 438. Zimmer argued that the rental company was negligent in renting him skis without testing and fitting the bindings. Id. at 440. The court granted the ski rental company’s motion for summary judgment based on an exculpatory agreement that Zimmer signed when he rented the skis that released the rental company “from any liability for damage and injury to myself or to any person or property resulting from the use of this equipment.” Id.

Thus, while the specific issue of a broken stirrup may be very uncommon, Pennsylvania courts have enforced exculpatory agreements in the case of a released party negligently providing the releasing party with defective or broken equipment.

Plaintiff advances a more narrow reading of the agreement and argues that because the agreement does not enumerate defective equipment as a risk, he did not expressly assume it. The Chepkevich Court, however, was clear that no illustrations or examples are required to give common terms effect in an exculpatory [*19]  agreement. See Chepkevich, 2 A.3d at 1193. “All claims” and “negligence” are commonly used terms and Pennsylvania law does not require drafters of exculpatory clauses to enumerate every possible contingency that is included in broader language they choose to use. Plaintiff agreed to release Defendant from “all claims” including those that arose from Defendant’s negligence. Plaintiff cannot now protest that he did not know what “all claims” included.3

3 At oral argument, Plaintiff advanced a slightly different argument. Plaintiff argued, in effect, that because paragraph one of the agreement enumerates risks associated with horseback riding, the rest of the agreement is limited to those enumerated lists. This argument was also advanced in Chepkevich. See Chepkevich, 2 A.3d at 1194. There, the court rejected the plaintiff’s argument that “by enumerating risks inherent to downhill skiing and then requiring the skier to accept those risks, the Release only bars suits that arise out of the listed risks.” Id. The court found that the release, which stated that skiing “is a dangerous sport with inherent and other risks,” was not limited to the enumerated the risks, but clearly included “other risks.” Here, as in Chepkevich, Plaintiff’s argument [*20]  fails on textual grounds. It is true that the agreement, in paragraph one, lists some risks inherent to horseback riding. However, in paragraph two and six, the agreement states that Plaintiff relinquishes “any and all claims.” There is no limiting language in paragraph two or six that would indicate that Plaintiff was only relinquishing claims arising out of the enumerated risks in paragraph one.

Plaintiff finally argues that Defendant’s conduct amounts to recklessness and exculpatory agreements cannot immunize reckless conduct. (Doc. 22 at 14); see Tayar, 47 A.3d at 1202-03. Defendant concedes that the agreement only releases it from suits for negligence, not recklessness, and counters that its “conduct at most amounts to ordinary negligence.” (Doc. 23 at 10). “Recklessness is distinguishable from negligence on the basis that recklessness requires conscious action or inaction which creates a substantial risk of harm to others, whereas negligence suggests unconscious inadvertence.” Tayar, 47 A.3d at 1200.

The actor’s conduct is in reckless disregard of the safety of another if he does an act or intentionally fails to do an act which it is his duty to the other to do, knowing or having reason to know of facts which would lead a reasonable [*21]  man to realize, not only that his conduct creates an unreasonable risk of physical harm to another, but also that such risk is substantially greater than that which is necessary to make his conduct negligent.

Id. at 1200-01 (quoting Restatement (Second) of Torts § 500).

Defendant’s bare assertion that its actions do not rise to the level of recklessness does not satisfy its burden to show that there is no genuine dispute as to a material fact. The record shows that Happy Trails provided a saddle for Plaintiffs ride, that a stirrup on that saddle broke during the ride, and that Plaintiff fell from a horse when the stirrup broke. (Doc. 22-5 at 35-36, 39-40). It was the responsibility of Happy Trails, not the customer, to inspect the equipment, but no records of inspections or repairs were kept, nor was the Happy Trails’ owner able to say if any inspection of the specific stirrup occurred on the day of the accident. (Id. at 13, 53-55, 58, 60). Happy Trails’ owner testified that he bought used saddles on the internet and also from individuals who walk into his business. (Id. at 18). He was unable to say where he procured the saddle in question, how long he had had it, or how old it was. (Id. at 18-19, 58, 60). Additionally, Happy Trails’ owner displayed a somewhat cavalier attitude towards [*22]  safety, asserting that customers assume all risks associated with the activity, including equipment breaking, staff failing to put equipment on the horses correctly, and even staff failing to provide basic equipment like stirrups or a bridal. (Id. at 32-33). Viewing the record in a light most favorable to Plaintiff, a question of fact therefore remains as to whether Defendant’s action rose to the level of recklessness.

Defendant goes on to argue that Plaintiff failed to plead recklessness and that if “recklessness is the standard to apply in this case, plaintiffs compliant must be dismissed with prejudice.” (Doc. 23 at 10). This argument, however, runs counter to the holding in Archibald v. Kemble, 2009 PA Super 79, 971 A.2d 513 (Pa. Super. Ct. 2009).

Archibald involved a lawsuit stemming from Robert Archibald’s participation in a “no-check” adult hockey league. Id. at 515. In his complaint, Archibald alleged that another player, Cody Kemble, checked him into the boards of the ice hockey rink. Id. The complaint went on to say that

Cody Kemble’s negligence consisted of the following:

a. failing to assure that Robert Archibald was aware and/or warned that the check was going to be attempted before checking him into the boards;

b. failing to assure that Robert Archibald was willing [*23]  to be checked;

c. checking Robert Archibald when not safe to do so;

d. failing to understand and learn the rules, prohibition and limitation on any checking prior to participating in the non-checking league and game.

Id. at 516. First determining that Archibald would only be able to recover if he showed that Kemble acted recklessly, the Court went on to hold that recklessness “may be averred generally.” Id. at 517, 519. Thus, “merely determining the degree of care is recklessness does not give rise to a separate tort that must have been pled within the applicable statute of limitations.” Id. at 519. Instead, “Archibalds’ cause of action was…subsumed within the negligence count pled in their Complaint.” Id.; see also M.U. v. Downingtown High Sch. E., 103 F. Supp. 3d 612, 629 (E.D. Pa. 2015) (construing a separately pleaded recklessness claim “simply as a mechanism to recover punitive damages under [the] negligence claim” because “[t]here is no cause of action for recklessness under Pennsylvania law” and “recklessness is a heightened standard of care required to potentially recover punitive damages”).

Consequently, under Archibald, the fact that Plaintiff did not specifically plead recklessness in his Complaint is not fatal to his claim. In his Complaint, Plaintiff alleged that, among other things, [*24]  Defendant “provid[ed] equipment or tack that defendant knew or should have known was faulty.” This statement encompasses the allegation that Defendant recklessly provided Plaintiff with defective or faulty equipment. The fact that Plaintiffs Complaint does not contain the word “reckless” is immaterial.

In sum, because the agreement that Plaintiff signed is only enforceable to immunize Defendant for its negligence, and not for its recklessness, and because there is a genuine dispute as to the material fact of whether Defendant acted recklessly in this case, the Court finds that the agreement is not a sufficient basis for summary judgment.

B. Equine Activities Immunity Act

Defendant next points to the Equine Activities Immunity Act, 4 P.S. §§ 601-606, as an alternative, independent basis for summary judgment. The EAIA limits the liability of certain providers of equine activities if specific requirements are met. Defendant argues that, as a provider of a qualifying equine activity who has complied with the EAIA’s statutory requirements, it is entitled to immunity from suit. (Doc. 20 at 10-11). Plaintiff counters that Defendant’s negligent provision of defective or faulty equipment puts the suit outside of the EAIA’s [*25]  protections. (Doc. 22 at 4).

The issue of whether a covered entity is immunized from liability under the EAIA for providing defective or faulty equipment is a question of first impression. As such, this Court must engage in statutory interpretation. For this Court to interpret state law, it “must determine how the highest court of the State would decide an issue.” Baker ex rel. Thomas v. Gen. Motors Corp., 522 U.S. 222, 249, 118 S. Ct. 657, 139 L. Ed. 2d 580 (1998). Pennsylvania interprets statutes according to the Statutory Construction Act of 1972, 1 Pa.Cons. Stat. Ann. §§ 1501-1991. “When interpreting statutory language, the Pennsylvania Supreme Court is guided by the ‘plain meaning’ rule of construction.” Hofkin v. Provident Life & Accident Ins. Co., 81 F.3d 365, 371 (3d Cir. 1996) (citing Commonwealth v. Stanley, 498 Pa. 326, 446 A.2d 583, 587 (Pa. 1982)). “The object of all interpretation and construction of statutes is to ascertain and effectuate the intention of the General Assembly. Every statute shall be construed, if possible, to give effect to all its provisions.” 1 Pa. Cons. Stat. Ann. § 1921(a). “When the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit.” Id. at § 1921(b).

The EAIA provides immunity for “an individual, group, club or business entity that sponsors, organizes, conducts or provides the facilities for an equine activity” including “[r]ecreational rides or drives which involve riding or other activity [*26]  involving the use of an equine.” 4 P.S. §§ 601, 602(b)(6). The EAIA, however, only provides immunity where signs of at least a certain size are “conspicuously posted on the premises…in two or more locations, which states the following: You assume the risk of equine activities pursuant to Pennsylvania law.” Id. at § 603. For covered entities in compliance with the signs requirement, “liability for negligence shall only be barred where the doctrine of knowing voluntary assumption of risk is proven with respect to damages due to injuries or death to an adult participant resulting from equine activities.” Id. at § 602(a). Finally, the Act is clear that “[t]he immunity provided for by this act shall be narrowly construed.” Id. at § 606.

Plaintiff does not argue that Defendant, as a provider of recreational horseback riding activities, is not a covered entity under the statute. Additionally, Plaintiff does not argue that Defendant did not have the appropriate signs as prescribed under the EAIA. Plaintiffs sole argument is that the Act does not bar actions for the negligent provision of faulty or defective equipment. (Doc. 22 at 6). Stated otherwise, Plaintiff argues that because he did not know he might be given defective or faulty [*27]  equipment, he could not knowingly assume the risk of such. Defendant counters that “[o]nce plaintiff entered the stables property and took part in recreational horse riding, he assumed the risk of harm associated with such activities.” (Doc. 20 at 11).

The EAIA states that “liability for negligence shall only be barred where the doctrine of knowing voluntary assumption of risk is proven.” 4 P.S. § 602(a). The Act, therefore, appears to preserve the common law assumption of risk doctrine in the context of equine activities. In delineating the contours of this doctrine, the Pennsylvania Supreme Court has looked to the Restatement Second of Torts. See Hughes v. Seven Springs Farm, Inc., 563 Pa. 501, 762 A.2d 339, 341-42 (Pa. 2000). The Restatement outlines four varieties of the doctrine, the first two of which are of interest in this case. See Restatement (second) of Torts § 496A cmt. c. The first, express assumption of risk occurs when lithe plaintiff has given his express consent to relieve the defendant of an obligation to exercise care for his protection, and agrees to take his chances as to injury from a known or possible risk.” Id. (emphasis added). This is the type of assumption of risk examined above in respect to the agreement signed by Plaintiff. The second, implied assumption of risk, occurs when lithe plaintiff has [*28]  entered voluntarily into some relation with the defendant which he knows to involve the risk, and so is regarded as tacitly or impliedly agreeing to relieve the defendant of responsibility, and to take his own chances.” Id. (emphasis added).

It is self-evident that a person “cannot be found to have implicitly assumed a risk of which he had no knowledge.” Rutter v. Ne. Beaver Cty. Sch. Dist., 496 Pa. 590, 437 A.2d 1198, 1204 (Pa. 1981) (plurality opinion). As such, lithe defense of assumption of the risk requires that the defendant show that the plaintiff was subjectively aware of the facts which created the danger and…must have appreciated the danger itself and the nature, character and extent which made it unreasonable.”‘ Berman v. Radnor Rolls, Inc., 374 Pa. Super. 118, 542 A.2d 525, 532 (Pa. Super. Ct. 1988) (alteration in original) (quoting Crance v. Sohanic, 344 Pa. Super. 526, 496 A.2d 1230, 1232 (Pa. Super. Ct. 1985)); See also Restatement (second) of Torts § 496D.4 Thus, for a defendant to prevail on a summary judgment motion based on the assumption of risk defense, it must be “beyond question that the plaintiff voluntarily and knowingly proceeded in the face of an obvious and dangerous condition.” Barrett v. Fredavid Builders, Inc., 454 Pa. Super. 162, 685 A.2d 129, 131 (Pa. Super. Ct. 1996) (citing Struble v. Valley Forge Military Acad., 445 Pa. Super. 224, 665 A.2d 4 (Pa. Super. Ct. 1995)). Finally, “[t]he mere fact one engages in activity that has some inherent danger does not mean that one cannot recover from a negligent party when injury is subsequently sustained.” Bullman v. Giuntoli, 2000 PA Super 284, 761 A.2d 566, 572 (Pa. Super. Ct. 2000).

4 Of course, a plaintiff’s own assertion about whether he knew of and understood [*29]  the risk is not conclusive.

There are some risks as to which no adult will be believed if he says that he did not know or understand them. Thus an adult who knowingly comes in contact with a fire will not be believed if he says that he was unaware of the risk that he might be burned by it; and the same is true of such risks as those of drowning in water or falling from a height, in the absence of any special circumstances which may conceal or appear to minimize the danger.

Restatement (Second) of Torts §496D cmt. d.

In short, to preclude Plaintiffs negligence action under the EAIA, Defendant must show that Plaintiff knew that the equipment he was provided with might break and voluntarily continued with the horseback ride in spite of that knowledge. Only then can Plaintiff be said to knowingly assume the risk. Defendant, however, has made no such showing. Defendant has failed to point to anything in the record to show that Plaintiff decided to use the equipment with the knowledge that the stirrup or any other equipment Plaintiff was provided with might break. Nor is this a case where the risk is so obvious that the knowledge could be inferred. The owner of Happy Trails testified that, in the approximately ten years he operated [*30]  the stable, he never remembered a single stirrup breaking. (Doc. 20-3 at 20-21). Given that it is not a common occurrence, it strains credibility to argue that a recreational participant would know that being provided broken equipment was likely.

Therefore, because there has been no showing that Plaintiff knew of the risk and voluntarily disregarded it, the EAIA provides no relief for Defendant.5

5 At oral argument, counsel for the Defendant conceded that, even under the broad interpretation of the Act that Defendant argued for, the Act would not immunize a covered entity for acts of recklessness or gross negligence. As this Court has already found that there is a genuine dispute as to the material fact of whether the Defendant acted recklessly, this provides an alternative ground for the finding that the Act does not provide immunity under these facts.

V. Conclusion

For the reasons stated above, the Court will deny Defendant’s Motion for Summary Judgment (Doc. 19). A separate Order follows.

/s/ Robert D. Mariani

Robert D. Mariani

United States District Judge

ORDER

AND NOW, THIS 26th DAY OF SEPTEMBER, 2016, upon consideration of Defendant’s Motion for Summary Judgment (Doc. 19), IT IS HEREBY ORDERED [*31]  THAT:

1. Defendant’s Motion for Summary Judgment (Doc. 19) is DENIED.

2. A telephone scheduling conference will be held on Wednesday, October 5, 2016, at 4:00 p.m. Counsel for Plaintiff is responsible for arranging the call to (570) 207-5750, and all parties should be ready to proceed before the undersigned is contacted.

/s/ Robert D. Mariani

Robert D. Mariani

United States District Judge

 


Pennsylvania Equine Activities Immunity Act

Pennsylvania Equine Activities Immunity Act

Pennsylvania Statutes

Title 4.  Amusements

Chapter 13.  Equine Activity

§ 601.  Scope. 1

§ 602.  Immunity. 1

§ 603.  Signing. 2

§ 604.  Equine propensity. 3

§ 605.  Effect on other laws. 3

§ 606.  Construction.. 3

§ 601.  Scope
This act shall apply to an individual, group, club or business entity that sponsors, organizes, conducts or provides the facilities for an equine activity as defined in this act.

HISTORY: Act 2005-93 (S.B. 618), P.L. 472, § 1, approved Nov. 22, 2005, eff. in 60 days.

§ 602.  Immunity
(a) ASSUMPTION OF RISK.–

As to those within the scope of this act, liability for negligence shall only be barred where the doctrine of knowing voluntary assumption of risk is proven with respect to damages due to injuries or death to an adult participant resulting from equine activities.

(b) EQUINE ACTIVITIES.–

For the purposes of this act, immunity shall apply where an equine is utilized in the following manner:

(1) Equine training, teaching, riding instruction, shows, fairs, parades, competitions or performances which involve breeds of equine participating in an activity. This paragraph shall include, but not be limited to, dressage, hunter and jumper shows, Grand Prix jumping, three-day eventing, combined training, rodeos, reining, cutting, team penning and sorting, driving, pulling, barrel racing, steeplechasing, English and Western performance riding and endurance and nonendurance trail riding. This paragraph shall also include Western games, gymkhana, hunting, packing, therapeutic riding and driving and recreational riding.

(2) Equine or rider and driver training, teaching, instruction or evaluation. This paragraph includes clinics, seminars and demonstrations.

(3) Boarding equines, including normal daily care.

(4) Breeding equines, whether by live cover or artificial insemination.

(5) Inspecting, riding or evaluating an equine belonging to another by a purchaser or agent, whether or not the owner of the equine has received anything of value for the use of the equine or is permitting a prospective purchaser or a purchaser’s agent to ride, drive, inspect or evaluate the equine.

(6) Recreational rides or drives which involve riding or other activity involving the use of an equine.

(7) Placing, removing or replacing of horseshoes or the trimming of an equine’s hooves.

(8) Leading, handling or grooming of an equine.

HISTORY: Act 2005-93 (S.B. 618), P.L. 472, § 2, approved Nov. 22, 2005, eff. in 60 days.

1. In support of an affirmance on appeal, judgment was properly entered for a decedent’s estate administratrix on her claims of negligence, wrongful death, and survival against a race track entity that arose when the thoroughbred race horse that decedent was exercising reacted to chickens that were roaming freely on the track, as the Pennsylvania Equine Activities Act was inapplicable to the decedent’s activity. Calderon v. Phila. Park Casino & Racetrack, 2014 Phila. Ct. Com. Pl. LEXIS 394 (Pa. C.P. Nov. 24, 2014).

2. In support of an affirmance on appeal, judgment was properly entered for a decedent’s estate administratrix on her claims of negligence, wrongful death, and survival against a race track entity that arose when the thoroughbred race horse that decedent was exercising reacted to chickens that were roaming freely on the track, as the Pennsylvania Equine Activities Act was inapplicable to the decedent’s activity. Calderon v. Phila. Park Casino & Racetrack, 2014 Phila. Ct. Com. Pl. LEXIS 394 (Pa. C.P. Nov. 24, 2014).

§ 603.  Signing
%   This act shall provide immunity only where signing is conspicuously posted on the premises on a sign at least three feet by two feet, in two or more locations, which states the following:   You assume the risk of equine activities pursuant to Pennsylvania law.

HISTORY: Act 2005-93 (S.B. 618), P.L. 472, § 3, approved Nov. 22, 2005, eff. in 60 days.

§ 604.  Equine propensity
Evidence of viciousness of the equine shall not be required before a possessor of an equine shall be subject to liability for harm.

HISTORY: Act 2005-93 (S.B. 618), P.L. 472, § 4, approved Nov. 22, 2005, eff. in 60 days.

§ 605.  Effect on other laws

This act shall not affect common law or any statute for the protection of the user of the equine. In no event shall this act apply to any matter involving a motor vehicle covered by 75 Pa.C.S. Ch. 17 (relating to financial responsibility) or a successor act or to any non-equine-related activity or entity.

HISTORY: Act 2005-93 (S.B. 618), P.L. 472, § 5, approved Nov. 22, 2005, eff. in 60 days.

§ 606.  Construction
The immunity provided for by this act shall be narrowly construed.

HISTORY: Act 2005-93 (S.B. 618), P.L. 472, § 6, approved Nov. 22, 2005, eff. in 60 days.

LexisNexis (R) Notes: Go to CASE NOTESCASE NOTESGo back to the top of LexisNexis (R) NotesCASE NOTES

1. In support of an affirmance on appeal, judgment was properly entered for a decedent’s estate administratrix on her claims of negligence, wrongful death, and survival against a race track entity that arose when the thoroughbred race horse that decedent was exercising reacted to chickens that were roaming freely on the track, as the Pennsylvania Equine Activities Act was inapplicable to the decedent’s activity. Calderon v. Phila. Park Casino & Racetrack, 2014 Phila. Ct. Com. Pl. LEXIS 394 (Pa. C.P. Nov. 24, 2014).

2. In support of an affirmance on appeal, judgment was properly entered for a decedent’s estate administratrix on her claims of negligence, wrongful death, and survival against a race track entity that arose when the thoroughbred race horse that decedent was exercising reacted to chickens that were roaming freely on the track, as the Pennsylvania Equine Activities Act was inapplicable to the decedent’s activity. Calderon v. Phila. Park Casino & Racetrack, 2014 Phila. Ct. Com. Pl. LEXIS 394 (Pa. C.P. Nov. 24, 2014).

 


Reardon v. Windswept Farm, LLC, et al., 280 Conn. 153; 905 A.2d 1156; 2006 Conn. LEXIS 330

Reardon v. Windswept Farm, LLC, et al., 280 Conn. 153; 905 A.2d 1156; 2006 Conn. LEXIS 330

Jessica Reardon v. Windswept Farm, LLC, et al.

SC 17506

SUPREME COURT OF CONNECTICUT

280 Conn. 153; 905 A.2d 1156; 2006 Conn. LEXIS 330

May 16, 2006, Argued

October 3, 2006, Officially Released

COUNSEL: Jeffrey I. Carton, with whom, on the brief, was Robert J. Levine, for the appellant (plaintiff).

John C. Turner, Jr., for the appellees (defendants).

JUDGES: Borden, Norcott, Katz, Vertefeuille and Zarella, Js. In this opinion KATZ, VERTEFEUILLE and ZARELLA, Js., concurred. NORCOTT, J., concurring.

OPINION BY: BORDEN

OPINION

[*154] [**1157] BORDEN, J. The dispositive issue in this appeal is whether a release signed by the plaintiff, Jessica Reardon, indemnifying the defendants, Windswept Farm, LLC, and its owners, William Raymond and Mona Raymond, from an action brought in negligence, precludes the plaintiff from recovering damages. More specifically, the question before this court is whether the release signed by the plaintiff violates public policy pursuant to our holding in Hanks v. Powder Ridge Restaurant Corp., 276 Conn. 314, 885 A.2d 734 (2005). [***2] The plaintiff appeals 1 from the judgment of the trial court granting the defendants’ motion for summary judgment. The plaintiff claims that: (1) the trial court incorrectly concluded that the release signed by the plaintiff was clear and unambiguous; and (2) in light of this court’s holding in Hanks, the release violates public policy. 2 [*155] We conclude that our holding in Hanks controls the present case and, therefore, that the release signed by the plaintiff was invalid. Accordingly, we reverse the judgment of the trial court.

1 The plaintiff appealed from the judgment of the trial court to the Appellate Court. We then transferred the appeal to this court pursuant to General Statutes § 51-199 (c) and Practice Book § 65-1.

2 Briefly stated, in Hanks this court dealt with an issue left unresolved by our holding in Hyson v. White Water Mountain Resorts of Connecticut, Inc., 265 Conn. 636, 643, 829 A.2d 827 (2003), wherein we did not have the opportunity to pass upon the question of whether the enforcement of a well drafted agreement that purports to release a party from liability for its prospective negligence is contrary to public policy. In particular, in Hanks we concluded that an otherwise well drafted, clear and unambiguous exculpatory agreement, purporting to release a defendant from its prospective liability for ordinary negligence, nonetheless violated public policy and was therefore unenforceable. Hanks v. Powder Ridge Restaurant Corp., supra, 276 Conn. 326. That decision was issued during the pendency of the present appeal, which led us to order supplemental briefing by the parties regarding whether the trial court’s judgment should be summarily reversed in light of our decision in Hanks.

[***3] The plaintiff brought this personal injury action against the defendants alleging negligence. The defendants moved for summary judgment, arguing that the release signed by the plaintiff was clear and unambiguous, and thus satisfied the standard [**1158] that this court set forth in Hyson v. White Water Mountain Resorts of Connecticut, Inc., 265 Conn. 636, 643, 829 A.2d 827 (2003), which provided that [HN1] “a party cannot be released from liability for injuries resulting from its future negligence in the absence of language that expressly so provides.” The trial court agreed that the plaintiff had signed a well drafted waiver of liability in the defendants’ favor, granted the defendants’ motion for summary judgment, and rendered judgment thereon. This appeal followed.

The following facts are relevant to our analysis of the plaintiff’s claims. The defendants are in the business of providing horseback riding lessons to the general public. In October, 2002, the plaintiff came to the defendants’ property and requested a horseback riding lesson. As a condition to riding one of the defendants’ horses, the plaintiff was required by the defendants to sign a release and indemnity agreement [***4] (release). The release was printed on a single page and consisted of [*156] three sections entitled, “Warning,” 3 “RELEASE,” 4 and “INDEMNITY AGREEMENT.” 5 It is undisputed that the plaintiff signed and dated the release prior to commencing her horseback riding lesson with the defendants. Similarly, it is undisputed that the plaintiff identified herself on the release as an “[e]xperienced [r]ider” and as someone who had “[r]idden [horses] frequently” several years earlier.

3 The “Warning” portion of the release provided as follows: “Pursuant to Connecticut General Statutes § 52-577p, [now § 52-557p] a person engaged in recreational activities assumes the risk and responsibility for any injury to his person or property arising out of the hazards inherent in equestrian sports, unless the injury was proximately caused by the negligence of the person providing the horse or horses to the individual engaged in the equestrian activities or the failure to guard or warn against a dangerous condition, use, structure or activity by the person provided the horse or horses or his agents or employees.”

[***5]

4 The “RELEASE” portion of the release provided in relevant part: “For, and in consideration of, the privilege to participate in an equine activity at Windswept Farm this date, receipt and sufficiency of which is hereby acknowledged, the undersigned hereby agrees to release, discharge and acquit WINDSWEPT FARM, its owners, stockholders, officers, directors, employees, agents, and servants from any and all claims, demands, sums of money, actions, rights, causes of action, liabilities and obligations of any kind or nature whatsoever, including ordinary negligence, which I may have had or now have or claim to have had, or hereafter may have, or assert to have, which arise out of, or is in any manner whatsoever directly or indirectly, connected with or related to my participation in the equine activity on this date. . . .” (Emphasis added.)

5 The “INDEMNITY AGREEMENT” portion of the release provided in relevant part: “The undersigned represents and warrants that he/she has read and understood the above-captioned Warning and Release. . . .”

Subsequent to the plaintiff signing the release [***6] provided by the defendants, the defendants paired the plaintiff with one of the horses from their stables and with one of the instructors in their employ. During the course of the plaintiff’s horseback riding lesson, the horse provided by the defendants became excited, bucked back and forth suddenly and without warning, and threw the plaintiff to the ground, causing her serious injuries.

[*157] The plaintiff brought an action in August, 2003, alleging that she had been injured due to the defendants’ negligence. In particular, the plaintiff alleged that her injuries were caused by the “carelessness, recklessness and negligence of the defendants” including, among other things, that (1) the “defendants failed to ensure that the horse on which [she] was placed was an appropriate horse commensurate with [**1159] [the plaintiff’s] skill and experience”; (2) the “defendants failed to prevent, warn or protect the plaintiff from the risk of a fall”; (3) the “defendants knew of the horse’s propensity to buck yet failed to warn [the plaintiff] of the same”; and (4) the “defendants failed properly to hire and train their riding instructor . . . .” In their answer, the defendants raised a special defense, [***7] namely, that “[t]he plaintiff [had] assumed the risk and legal responsibility for any injury to her person per . . . General Statutes [§ ] 52-557p,” 6 and that “[t]he plaintiff’s claims [were] barred [due to the fact] that she signed a waiver/release of all claims in favor of the defendants.”

6 The “Warning” section of the release mirrors General Statutes § 52-557p, which provides: [HN2] “Each person engaged in recreational equestrian activities shall assume the risk and legal responsibility for any injury to his person or property arising out of the hazards inherent in equestrian sports, unless the injury was proximately caused by the negligence of the person providing the horse or horses to the individual engaged in recreational equestrian activities or the failure to guard or warn against a dangerous condition, use, structure or activity by the person providing the horse or horses or his agents or employees.”

The plaintiff makes two claims on [***8] appeal. First, the plaintiff claims that the release of all claims “includ[ing] ‘ordinary negligence'” set forth in the release was ambiguous when read together with the “Warning” section printed above it, which, tracking § 52-557p, did not exempt from liability injuries “proximately caused by the negligence of the person providing the horse or horses to the individual engaged in the equestrian activities . . . .” Second, pursuant to our order for supplemental [*158] briefing, the plaintiff claims that the release is void as a matter of public policy in light of this court’s decision in Hanks v.Powder Ridge Restaurant Corp., supra, 276 Conn. 314. We agree with the plaintiff that our decision in Hanks controls the present case. Accordingly, we need not consider the plaintiff’s claim that the trial court incorrectly concluded that the release signed by the plaintiff was clear and unambiguous. 7

7 Specifically, assuming that the standards identified in Hanks have been satisfied, as we conclude in the present case, it is irrelevant whether the underlying release of liability was clearly and unambiguously drafted and, therefore, was also invalid pursuant to our holding in Hyson v. White Water Mountain Resorts of Connecticut, Inc., supra, 265 Conn. 643, which provided that “a party cannot be released from liability for injuries resulting from its future negligence in the absence of language that expressly so provides.”

[***9] We begin with the appropriate standard of review. [HN3] “Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . [HN4] The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law. . . . The test is whether the party moving for summary judgment would be entitled to a directed verdict on the same facts. . . . [HN5] Our review of the trial court’s decision to grant the defendant’s motion for summary judgment is plenary.” (Citations omitted; internal quotation marks omitted.) Leisure Resort Technology, Inc. v. Trading Cove Associates, 277 Conn. 21, 30-31, 889 A.2d 785 (2006).

[**1160] In light of our holding in Hanks, we cannot conclude that the defendants are entitled to a judgment [***10] in their [*159] favor as a matter of law. Put another way, our reasoning in Hanks requires that we invalidate the release signed by the plaintiff; thus, several genuine issues of material fact surrounding the defendants’ potential negligence remain in dispute.

As previously noted, in Hanks, we concluded that [HN6] the enforcement of a well drafted exculpatory agreement that releases a provider of a recreational activity from prospective liability for personal injuries sustained as a result of the provider’s negligence may violate public policy if certain conditions are met. Hanks v. Powder Ridge Restaurant Corp., supra, 276 Conn. 326. In general, we noted that “[t]he law does not favor contract provisions which relieve a person from his own negligence . . . . This is because exculpatory provisions undermine the policy considerations governing our tort system . . . [which include] compensation of innocent parties, shifting the loss to responsible parties or distributing it among appropriate entities, and deterrence of wrongful conduct . . . .” (Citation omitted; internal quotation marks omitted.) Id., 327. Moreover, we recognized that “it is consistent [***11] with public policy to posit the risk of negligence upon the actor and, if this policy is to be abandoned, it has generally been to allow or require that the risk shift to another party better or equally able to bear it, not to shift the risk to the weak bargainer.” (Internal quotation marks omitted.) Id.

Additionally, when assessing the public policy implications of a particular release or waiver of liability, we concluded that “[n]o definition of the concept of public interest [may] be contained within the four corners of a formula,” and that “[t]he ultimate determination of what constitutes the public interest must be made considering the totality of the circumstances of any given case against the backdrop of current societal expectations.” (Internal quotation marks omitted.) Id., 330. Our [*160] analysis in Hanks was also guided, though not limited, by the factors articulated by the Supreme Court of California in Tunkl v. Regents of the University of California, 60 Cal.2d 92, 98-101, 383 P.2d 441, 32 Cal.Rptr. 33 (1963), 8 which include, among other things, [HN7] a consideration as to whether the release pertains to a business thought suitable for [***12] public regulation, whether the party performing the service holds himself out as making the activity available to any member of the public who seeks it, and whether the provider of the activity exercises superior bargaining power [**1161] and confronts the public with a standard contract of adhesion.

8 The complete list of factors identified by the Supreme Court of California are as follows: “[1] [The agreement] concerns a business of a type generally thought suitable for public regulation. [2] The party seeking exculpation is engaged in performing a service of great importance to the public, which is often a matter of practical necessity for some members of the public. [3] The party holds himself out as willing to perform this service for any member of the public who seeks it, or at least for any member coming within certain established standards. [4] As a result of the essential nature of the service, in the economic setting of the transaction, the party invoking exculpation possesses a decisive advantage of bargaining strength against any member of the public who seeks his services. [5] In exercising a superior bargaining power the party confronts the public with a standardized adhesion contract of exculpation, and makes no provision whereby a purchaser may pay additional reasonable fees and obtain protection against negligence. [6] Finally, as a result of the transaction, the person or property of the purchaser is placed under the control of the seller, subject to the risk of carelessness by the seller or his agents.” Tunkl v. Regents of the University of California, supra, 60 Cal.2d 98-101.

[***13] In the context of snowtubing, which was the recreational activity at issue in Hanks, we placed particular emphasis on: (1) the societal expectation that family oriented activities will be reasonably safe; (2) the illogic of relieving the party with greater expertise and information concerning the dangers associated with the activity from the burden of proper maintenance of the snowtubing run; and (3) the fact that the release at issue was a standardized adhesion contract, lacking equal bargaining power between the parties, and [*161] offered to the plaintiff on a “‘take it or leave it'” basis. Hanks v. Powder Ridge Restaurant Corp., supra, 276 Conn. 331-34. Moreover, we recognized the clear public policy in favor of participation in athletics and recreational activities. Id., 335 (“[v]oluntary recreational activities, such as snowtubing, skiing, basketball, soccer, football, racquetball, karate, ice skating, swimming, volleyball or yoga, are pursued by the vast majority of the population and constitute an important and healthy part of everyday life”).

We conclude that, based on our decision in Hanks, the totality of the circumstances surrounding [***14] the recreational activity of horseback riding and instruction that was offered by the defendants demonstrates that the enforcement of an exculpatory agreement in their favor from liability for ordinary negligence violates public policy and is not in the public interest. First, similar to the situation at issue in Hanks, the defendants in the present case provided the facilities, the instructors, and the equipment for their patrons to engage in a popular recreational activity, and the recreational facilities were open to the general public regardless of an individual’s ability level. Indeed, the defendants acknowledged that, although the release required riders to indicate their experience level, it also anticipated a range in skills from between “[n]ever ridden” to “[e]xperienced [r]ider,” and that the facility routinely had patrons of varying ability levels. Accordingly, there is a reasonable societal expectation that a recreational activity that is under the control of the provider and is open to all individuals, regardless of experience or ability level, will be reasonably safe.

Additionally, in the present case, as in Hanks, the plaintiff “lacked the knowledge, experience [***15] and authority to discern whether, much less ensure that, the defendants’ [facilities or equipment] were maintained in a reasonably safe condition.” Hanks v. Powder Ridge Restaurant [*162] Corp., supra, 276 Conn. 331. Specifically, although the plaintiff characterized herself as an experienced rider, she was in no greater position then the average rider 9 to assess all the safety issues connected with the defendants’ enterprise. To the contrary, it was the defendants, not the plaintiff or the other customers, who had the “expertise and opportunity to foresee and control hazards, and to guard against the negligence of their agents and employees. They alone [could] properly maintain and inspect their premises, and train their employees in risk management.” (Internal quotation marks omitted.) Id., 331-32. In particular, the defendants acknowledged that they were responsible for providing their patrons with safe horses, qualified instructors, as well as properly maintained working equipment and riding surfaces. [**1162] In the context of carrying out these duties, the defendants were aware, and were in a position continually to gather more information, regarding any [***16] hidden dangers associated with the recreational activity including the temperaments of the individual horses, the strengths of the various riding instructors, and the condition of the facility’s equipment and grounds. As we concluded in Hanks, it is illogical to relieve the defendants, as the party with greater expertise and information concerning the dangers associated with engaging in horseback riding at their facility, from potential claims of negligence surrounding an alleged failure to administer properly the activity.

9 We also note that we view the release as it applies to all customers, not solely this plaintiff, who happened to have significant riding experience, albeit several years prior to the date of her accident.

Furthermore, the release that the plaintiff signed broadly indemnifying the defendants from liability for damages resulting from the defendants’ own negligence was a classic contract of adhesion of the type that this court found to be in violation of public policy in Hanks. [***17] Specifically, we have noted that [HN8] “[t]he most salient feature [*163] [of adhesion contracts] is that they are not subject to the normal bargaining processes of ordinary contracts,” and that they tend to involve a “standard form contract prepared by one party, to be signed by the party in a weaker position, [usually] a consumer, who has little choice about the terms . . . .” (Internal quotation marks omitted.) Id., 333. In the present case, signing the release provided by the defendants was required as a condition of the plaintiff’s participation in the horseback riding lesson, there was no opportunity for negotiation by the plaintiff, and if she was unsatisfied with the terms of the release, her only option was to not participate in the activity. As in Hanks, therefore, the plaintiff had nearly zero bargaining power with respect to the negotiation of the release and in order to participate in the activity, she was required to assume the risk of the defendants’ negligence. This condition of participation violates the stated public policy of our tort system because the plaintiff was required to bear an additional risk despite her status as a patron who was not in a position [***18] to foresee or control the alleged negligent conduct that she was confronted with, or manage and spread the risk more effectively then the defendants.

We are also mindful that, as evidenced by § 52-557p, recreational horseback riding is a business thought suitable for public regulation, but that the legislature has stopped short of requiring participants to bear the very risk that the defendants now seek to pass on to the plaintiff by way of a mandatory release. In particular, the legislature has prescribed that “[e]ach person engaged in recreational equestrian activities shall assume the risk and legal responsibility for any injury to his person or property arising out of the hazards inherent in equestrian sports, unless the injury was proximately caused by the negligence of the person providing the horse or horses to the individual . . . .” [*164] (Emphasis added.) General Statutes § 52-557p; see footnote 6 of this opinion. This language establishes that the plaintiff assumed the risk for certain injuries when riding at the defendants’ facility due to the nature of horseback riding as an activity, but that an operator of such a facility can still be liable [***19] for injuries caused by its own negligence. For the reasons previously discussed, we conclude that the defendants’ attempt contractually to extend the plaintiff’s assumption of risk one step beyond that identified by the legislature in § 52-557p violates the public policy of the state and, therefore, is invalid.

The defendants contend that the plaintiff’s only claim before the trial court was that the release was ambiguous, and that the plaintiff otherwise conceded the [**1163] release’s enforceability, thereby failing to preserve for appeal the issue of whether the release violated public policy. 10 Put another way, the defendants contend that the issue before the trial court was only whether the addition of the “warning” language to the release as a whole resulted in contradictory language, and that regardless of our decision in Hanks, we still must decide the issue articulated by the trial court. We disagree.

10 As part of the defendants’ motion for summary judgment, and in an effort to clarify the plaintiff’s case, the trial court asked the plaintiff directly if the release were found to be clear and unambiguous, would it be enforceable: “The Court: You are not trying to claim that it’s not possible under Connecticut law for a person in the defendants’ position to present an effective release to a horse rider and then to rely upon it to avoid liability, are you? “[Plaintiff’s Counsel]: Absolutely not, Your Honor. . . . “The Court: Okay. Then . . . so that what we have to do is to determine whether this is a sufficient release. That’s the only issue before us. “[Plaintiff’s Counsel]: Absolutely, Your Honor.” (Emphasis added.)

[***20] We recognize that [HN9] this court is not “bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial.” Practice Book § 60-5; see also Pestey v. Cushman, 259 Conn. 345, 372-74, 788 A.2d 496 (2002). Additionally, as a general rule, “[a] [*165] party cannot present a case to the trial court on one theory and then ask a reversal in the [S]upreme [C]ourt on another.” (Internal quotation marks omitted.) Sorrentino v. All Seasons Services, Inc., 245 Conn. 756, 770, 717 A.2d 150 (1998). This court, however, has the discretion to act, sua sponte, on grounds not directly raised by the parties. See Burton v. Browd, 258 Conn. 566, 569, 783 A.2d 457 (2001). That is exactly what we did in the present case when, in light of our decision in Hanks, we ordered the parties to brief the issue of whether the release was void as a matter of public policy. 11 In sum, because Hanks resolved an issue previously unaddressed, and because the parties had the opportunity to brief the case’s impact, we conclude that the interest in the uniform application of the plainly [***21] governing law warrants our consideration of a claim beyond the narrow issue that was before the trial court.

11 See footnote 2 of this opinion.

Finally, the defendants contend that horseback riding is somehow different from snowtubing and, therefore, that the defendants’ release does not violate public policy. In particular, the defendants note that horseback riding is not one of the recreational activities that we specifically identified by name in Hanks v. Powder Ridge Restaurant Corp., supra, 276 Conn. 335, and that, unlike in Hanks, which involved an injury caused by a defective snowtube run, in the present case the plaintiff was injured when the horse she was riding bucked and threw her to the ground. The defendants claim that this distinction is significant because they characterize a bucking horse as a risk that is inherent to horseback riding in general. We are not persuaded.

The list of recreational activities that we identified in Hanks was meant to be illustrative, [***22] not exhaustive. See id. Indeed, it would be impossible for us to identify all of the recreational activities controlled by the Hanks [*166] decision. 12 Additionally, as previously [**1164] discussed in detail, the circumstances surrounding the defendants’ horseback riding business and the signing of the release by the plaintiff bear many similarities to the circumstances present in Hanks. In particular, the defendants’ horseback riding business was open to the general public regardless of skill level, the plaintiff was ill equipped to discern whether she had been paired negligently with her horse and instructor commensurate with her skill level, the defendants controlled which horse and instructor were assigned to the plaintiff, and the defendants’ release constituted a classic contract of adhesion.

12 We are mindful that contrary to the defendants’ argument, our courts repeatedly have referenced horseback riding as a recreational activity. See Conway v. Wilton, 238 Conn. 653, 668, 680 A.2d 242 (1996) (state legislator commenting on necessity of “maintaining land that could very well serve for . . . horseback riding and for many other recreational activities”); Miskimen v. Biber, 85 Conn. App. 615, 620, 858 A.2d 806 (2004) (“[t]he excess land is also used for . . . horseback riding and other recreational activities”), cert. denied, 272 Conn. 916, 866 A.2d 1287 (2005). Moreover, our characterization of snowtubing as a recreational activity; see Hanks v. Powder Ridge Restaurant Corp., supra, 276 Conn. 330; does not, in and of itself, dictate our public policy.

[***23] Furthermore, the fact that there are certain risks that are inherent to horseback riding as a recreational activity, as the legislature recognized in § 52-557p, one of which may be that horses move unexpectedly, does not change the fact that an operator’s negligence may contribute greatly to that risk. For example, the defendants’ may have negligently paired the plaintiff with an inappropriate horse given the length of time since she last had ridden or negligently paired the plaintiff with an instructor who had not properly been trained on how to handle the horse in question. Both of these scenarios present factual questions that, at trial, may reveal that the defendants’ negligence, and not an inherent risk of the activity, was to blame for the plaintiff’s injuries.

[*167] Moreover, as aptly noted at oral argument before this court, the plaintiff does not challenge the fact that there were risks inherent in the activity of horseback riding that she otherwise was prepared to assume. Rather, she challenges the defendants’ claimed indemnity from the alleged neglect and carelessness of the stable operator and its employees to whom she entrusted her safety. Indeed, the inherent unpredictability [***24] of a horse is something that the legislature already has considered in providing to an operator of a horseback riding facility a defense to a claim of negligence pursuant to the assumption of risk doctrine codified in § 52-557p. This protection granted by the legislature, however, does not permit the operator to avoid liability entirely for its negligence or that of its employees. Accordingly, on the basis of our decision in Hanks, as well as the circumstances of the present case, we are unable to conclude that the recreational activity of horseback riding is so different from snowtubing that the release in this case should be enforced as a matter of law.

The judgment is reversed and the case is remanded to the trial court with direction to deny the defendants’ motion for summary judgment, and for further proceedings according to law.

In this opinion KATZ, VERTEFEUILLE and ZARELLA, Js., concurred.

CONCUR BY: NORCOTT

CONCUR

NORCOTT, J., concurring. I agree with the majority that this court’s holding in Hanks v. Powder Ridge Restaurant Corp., 276 Conn. 314, 885 A.2d 734 (2005) [***25] , controls the present case.


Michigan Equine helped the plaintiff more than the stable and helped prove there may be gross negligence on the part of the defendant

Plaintiff argues gross negligence claim which appellate court agreed raise enough triable issues of fact to send the case back to the trial court.

Hawkins, v Ranch Rudolph, Inc., 2005 Mich. App. LEXIS 2366

State: Michigan, COURT OF APPEALS OF MICHIGAN

Plaintiff: Bret D. Hawkins and Erin Hawkins

Defendant: v Ranch Rudolph, Inc. and Circle H Stables, Inc.

Plaintiff Claims: Gross Negligence

Defendant Defenses: Actions not negligent

Holding: For Plaintiff

Year: 2005

The plaintiffs were on their honeymoon and signed up for a trail ride. They chose the “Wrangler Ride” offered by the defendant because the groom had never been on a horse before. The Bride had only been on a horse once when she was eleven. The Wrangler Ride was a four mile single file ride on trails through the woods.

The trail guide or wrangler chose a horse for the groom that was very gentle, normally used for kids. The wrangler gave everyone basic instructions how to stay on the horse and use the reins. The wrangler saddled the horses and double checked the saddles before and after the guests mounted their horses.

The groom claimed after mounting the horse he complained that his saddle was not securely fastened. The wrangler did not recall the groom making this request. She also did not notice the saddle was loose while the groom was mounting the horse.

During the ride the wrangler asked if they wanted to trot their horses and asked if anyone was opposed to the idea. She also said if they were having trouble to yell.

At this point the plaintiff’s version of the facts are so fare outside of the scope of a normal operation or how horses would respond it is clear the facts were altered or made up to support their claims.

According to plaintiffs, Ridge and her horse then “bolted” into a fast, or full-out run, and the other horses followed her lead. Both plaintiffs stated that when their horses began running they were too surprised or shocked to yell and were just trying to hang on. According to Bret, his saddle slid to the right and he grabbed the saddlehorn and the back of the saddle as instructed but was still falling off his horse. He stated that his arm hit a tree so hard that he suffered a humeral fracture. He then fell from the horse.

However the wrangler and other people on the ride described the events quite differently.

According to Ridge, a trot is a fast walk, “slower than a canter, and much slower than a run or gallop.” Other experienced riders in the group characterized a trot in similar language.

One of the other participants attested that he checked the saddle after the fall and it was not loose.

On top of that the facts are just too absurd to be believable. No trail ride, no matter how good the riders are going to take off on a gallop. It is dangerous for riders of all abilities and horses. Second, normally, the first thing someone in trouble or seeing a risk does is scream. Thirdly, if you are holding on to the saddlehorn with one hand and the back of the saddle with the other, how does your arm fly out and strike a tree?

The trial court could not find facts in the plaintiff’s version of the facts that would rise to the level required to prove negligence under Michigan law. The release voided all ordinary negligence claims so only the gross negligence claim was viable.

The case was dismissed and the plaintiff’s appealed.

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

The basic claim of the plaintiff is there were issues of fact in dispute giving rise to enough for a jury to decide.

The first issue the court addressed was the witness statements, but not directly. Rather the court looked at what a witness may say. Basically it is about anything as long as it is relevant to the case. Lay witnesses, witnesses that are not qualified as an expert witness, can provide opinions.

As an initial matter, plaintiffs’ testimony was admissible because it was based on their personal observations and perceptions. MRE 602. To the extent that plaintiffs’ testimony merely amounted to opinion, such testimony would nevertheless be admissible evidence. MRE 701. “MRE 701 allows opinion testimony by a lay witness as long as the opinion is rationally based on the perception of the witness and helpful to a clear understanding of his testimony or a fact in issue.” “Once a witness’s opportunity to observe is demonstrated, the opinion is admissible in the discretion of the trial court, and the weight to be accorded the testimony is for the jury to decide.” Moreover, laypersons are permitted to testify regarding speed. Therefore, that plaintiffs lacked experience with horses merely goes to the weight of their testimony not to its admissibility.

So no matter how farfetched or contrived the statements of a witness, if they cannot be proved as false, they are admitted into court.

The court then looked at gross negligence in Michigan. “…gross negligence should be defined as “conduct so reckless as to demonstrate a substantial lack of concern for whether an injury results.”

Since under Michigan and most other (if not all) state laws a release does not void a claim for gross negligence, the only claims left of the plaintiff were the gross negligence claims.

The Michigan Equine Liability act allows the use of a release by horse owners.

§ 691.1666.  Notice; posting and maintenance of signs; contract; contents of notice.

(2) A written contract entered into by an equine professional for providing professional services, instruction, or rental of equipment, tack, or an equine to a participant, whether or not the contract involves an equine activity on or off the location or site of the equine professional’s business, shall contain in clearly readable print the warning notice set forth in subsection (3).

The court pointed out that the act did not provide protection for the “equine professional.” As such, the only claims available to the plaintiff were the claims for gross negligence.

The court then found that the plaintiff’s claims if viewed in a light most favorable to them could be found to be valid to prove a claim of gross negligence.

We conclude that viewing the evidence in the light most favorable to plaintiffs, reasonable minds could differ regarding whether her conduct of taking a totally inexperienced rider on a fast ride was so reckless as to demonstrate a substantial lack of concern for whether an injury resulted.

There is a dissenting opinion that found the trial court was correct in its analysis of the facts. However the majority opinion found that the issue at trial in this case was the decision to speed up the ride.

However, in our collective opinion, our point of departure from our esteemed colleague’s dissenting opinion is the trail guide’s decision to speed up the pace when plaintiff had never ridden a horse before. For a first time rider, yelling “Whoa Nellie” or in this instance, “Whoa Tye” hoping to slow the horse down or to obtain the trail guide’s attention for help could be difficult.

The court went on to explain its reasoning.

Ridge was in control of the horses’ speed, as the guide riding the lead horse. And Bret’s horse “bolted” not because it was scared, which would clearly be an inherent risk of an equine activity, but because it was following Ridge’s lead. It cannot be disputed that she made the conscious decision to “speed things up a little bit,” knowing that Bret lacked the requisite experience to control the animal on which he rode. It would seem that it was indisputably an important part of Ridge’s job to look after the safety of those placed in her care.

The court sent the case back to trial.

A reasonable person could conclude that Ridge’s conduct of taking plaintiffs on a fast ride given their known lack of experience unreasonably added to the risks of the already dangerous activity and was thus so reckless as to demonstrate a substantial lack of concern for whether an injury resulted.

So Now What?  (Motivational get them to do something post)

First the Michigan Equine Liability Statute only protects a horse owner from the actions of the horse. There was no protection for the actions of the wrangler or the stable. No matter how written all equine liability acts have been written in a similar way leaving wide open any lawsuit claiming the injury the plaintiff received was do the owner’s negligence.

As I have said in the past, Equine Liability Acts are 100% effective, since their enactment no horses have been sued. However the acts were so glaring deficient they have seemingly increased the number of lawsuits against horse owners.

This defendant wisely followed the requirements of the act and had guests sign a release.

The second issue is wild statements of the injured guests. Actually there are very little ways to counteract these statements except for one. If you can record either in writing, in the minds of witnesses or by a tape the statements of the possible plaintiffs. Keeping good notes on what they said might allow you to at least partially discredit later allegations, but only at trial.

Another real issue that came to light in this case is the other riders who were involved with their actions and opinions. One rider checked the saddle to see if it was tight and others opined they never went faster than a trot. Keeping the other witnesses and participants to an activity engaged and happy can be of infinite value to you later. Remember a Victim is not only the person who was hurt but anyone who saw the victim or was on the trip. These people may need care, maybe not first aid, but at least someone to help them deal with the issues they may be having.

Although those statements would have little value in pre-trial motions, their testimony at trial is the most valuable statements made on the stand. Jurors know that the other guests had a better view, a better understanding of what happened and no axe to grind or wallet to defend.

 

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Michigan Equine Activity Liability Act

MICHIGAN COMPILED LAWS SERVICE

Copyright © 2015 Matthew Bender & Company, Inc.

a member of the LexisNexis Group.

All rights reserved.

This document is current through 2015 Public Act 202 with the exception of Public Acts 160, 167, 170, 173-176, 178-179, 181, 182, 191, and 198.

Chapter 691  Judiciary

Act 351 of 1994  Equine Activity Liability Act

Go to the Michigan Code Archive Directory

MCLS § 691.1662  (2015)

 

§ 691.1661.  Short title. 1

§ 691.1662.  Definitions. 2

§ 691.1663.  Injury, death, or property damage; liability. 5

§ 691.1664.  Liability; exception; waiver. 7

§ 691.1665.  Liability not prevented or limited; conditions. 9

§ 691.1666.  Notice; posting and maintenance of signs; contract; contents of notice. 11

§ 691.1667.  Applicability of act. 12

 

§ 691.1661.  Short title.

Sec. 1.   This act shall be known and may be cited as the “equine activity liability act”.

HISTORY: Pub Acts 1994, No. 351, § 1, eff March 30, 1995.

NOTES:

Prior codification:

MSA § 12.418(1)

Editor’s notes:

Pub Acts 1994, No. 351, § 7, eff March 30, 1995, provides:

“Sec. 7. This act applies only to a cause of action filed on or after the effective date of this act.”.

LexisNexis(R) Michigan analytical references:

Michigan Law and Practice, Animals §§ 61, 71

Michigan Law and Practice, Torts § 74

ALR notes:

Liability of owner or bailor of horse for injury by horse to hirer or bailee thereof, 6 ALR4th 358

Validity, construction, and effect of agreement exempting operator of amusement facility from liability for personal injury or death of patron, 54 ALR5th 513

Liability of owner of horse to person injured or killed when kicked, bitten, knocked down, and the like, 85 ALR2d 1161

Liability of youth camp, its agents or employees, or of scouting leader or organization, for injury to child participant in program, 88 ALR3d 1236

Research references:

4 Am Jur 2d, Animals §§ 96-100, 105, 106, 113-115, 122, 134, 136-141

1C Am Jur Pl & Pr Forms, Rev, Animals, §§ 3, 132-140

13 Am Jur Proof of Facts 2d 473, Knowledge of Animal’s Vicious Propensities

25 Am Jur Proof of Facts 2d 461, Failure to Use Due Care in Providing Horses for Hire

§ 691.1662.  Definitions.

Sec. 2.   As used in this act:

            (a) “Engage in an equine activity” means riding, training, driving, breeding, being a passenger upon, or providing or assisting in veterinary treatment of an equine, whether mounted or unmounted. Engage in an equine activity includes visiting, touring, or utilizing an equine facility as part of an organized event or activity including the breeding of equines, or assisting a participant or show management. Engage in equine activity does not include spectating at an equine activity, unless the spectator places himself or herself in an unauthorized area and in immediate proximity to the equine activity.

            (b) “Equine” means horse, pony, mule, donkey, or hinny.

            (c) “Equine activity” means any of the following:

                        (i) An equine show, fair, competition, performance, or parade including, but not limited to, dressage, a hunter and jumper horse show, grand prix jumping, a 3-day event, combined training, a rodeo, riding, driving, pulling, cutting, polo, steeplechasing, English and western performance riding, endurance trail riding, gymkhana games, and hunting.

                        (ii) Equine training or teaching activities.

                        (iii) Boarding equines, including their normal daily care.

                        (iv) Breeding equines, including the normal daily care and activities associated with breeding equines.

                        (v) Riding, inspecting, or evaluating an equine belonging to another, whether or not the owner receives monetary consideration or another thing of value for the use of the equine or is permitting a prospective purchaser of the equine or an agent to ride, inspect, or evaluate the equine.

                        (vi) A ride, trip, hunt, or other activity, however informal or impromptu, that is sponsored by an equine activity sponsor.

                        (vii) Placing or replacing a horseshoe on or hoof trimming of an equine.

            (d) “Equine activity sponsor” means an individual, group, club, partnership, or corporation, whether or not operating for profit, that sponsors, organizes, or provides the facilities for an equine activity, including, but not limited to, a pony club; 4-H club; hunt club; riding club; school- or college-sponsored class, program, or activity; therapeutic riding program; stable or farm owner; and operator, instructor, or promoter of an equine facility including, but not limited to, a stable, clubhouse, ponyride string, fair, or arena at which the equine activity is held.

            (e) “Equine professional” means a person engaged in any of the following for compensation:

                        (i) Instructing a participant in an equine activity.

                        (ii) Renting an equine, equipment, or tack to a participant.

                        (iii) Providing daily care of horses boarded at an equine facility.

                        (iv) Training an equine.

                        (v) Breeding of equines for resale or stock replenishment.

            (f) “Inherent risk of an equine activity” means a danger or condition that is an integral part of an equine activity, including, but not limited to, any of the following:

                        (i) An equine’s propensity to behave in ways that may result in injury, harm, or death to a person on or around it.

                        (ii) The unpredictability of an equine’s reaction to things such as sounds, sudden movement, and people, other animals, or unfamiliar objects.

                        (iii) A hazard such as a surface or subsurface condition.

                        (iv) Colliding with another equine or object.

            (g) “Participant” means an individual, whether amateur or professional, engaged in an equine activity, whether or not a fee is paid to participate.

HISTORY: Pub Acts 1994, No. 351, § 2, eff March 30, 1995.

NOTES:

Prior codification:

MSA § 12.418(2)

Editor’s notes:

Pub Acts 1994, No. 351, § 7, eff March 30, 1995, provides:

“Sec. 7. This act applies only to a cause of action filed on or after the effective date of this act.”.

NOTES TO DECISIONS

Plaintiff, a visitor to a stable, was a “participant” under the Equine Activity Liability Act when she briefly assisted in the care of a horse owned by a friend. Therefore her claim for damages arising from being bitten by a horse was properly dismissed on summary. Amburgey v. Sauder, 238 Mich. App. 228, 605 N.W.2d 84, 1999 Mich. App. LEXIS 282 (Mich. Ct. App. 1999).

Horse owner could invoke MCL § 691.1663 of the Michigan Equine Activity Liability Act (EALA), MCL §§ 691.1661 et seq., although she was not an equine professional or an equine activity sponsor because she fit within the definition of “another person” under § 691.1663 of the EALA. Also, she properly was characterized as an equine participant as that term was defined in MCL § 691.1662. Gardner v. Simon, 445 F. Supp. 2d 786, 2006 U.S. Dist. LEXIS 57228 (W.D. Mich. 2006).

Rider’s injuries while riding a horse resulted from “an inherent risk of an equine activity” as that phrase was defined under MCL § 691.1662(f) of the Michigan Equine Activity Liability Act, MCL §§ 691.1661 et seq., based on the rider’s testimony that, upon being mounted, the horse got a little antsy and started to raise up on the front end a little bit at which time the rider, who was experienced, began turning the horse in tight circles to settle him down. After turning two circles, the horse bumped his head on a tree; reared up and caught one of his front hoofs in a tree; went over backwards and fell on the rider, injuring the rider. Gardner v. Simon, 445 F. Supp. 2d 786, 2006 U.S. Dist. LEXIS 57228 (W.D. Mich. 2006).

LexisNexis(R) Michigan analytical references:

Michigan Law and Practice, Animals § 73

ALR notes:

Liability of owner or bailor of horse for injury by horse to hirer or bailee thereof, 6 ALR4th 358

Validity, construction, and effect of agreement exempting operator of amusement facility from liability for personal injury or death of patron, 54 ALR5th 513

Liability of owner of horse to person injured or killed when kicked, bitten, knocked down, and the like, 85 ALR2d 1161

Liability of youth camp, its agents or employees, or of scouting leader or organization, for injury to child participant in program, 88 ALR3d 1236

Michigan Digest references:

Animals § 15

Research references:

1C Am Jur Pl & Pr Forms, Rev, Animals, § 1

25 Am Jur Proof of Facts 2d 461, Failure to Use Due Care in Providing Horses for Hire

§ 691.1663.  Injury, death, or property damage; liability.

Sec. 3.   Except as otherwise provided in section 5, an equine activity sponsor, an equine professional, or another person is not liable for an injury to or the death of a participant or property damage resulting from an inherent risk of an equine activity. Except as otherwise provided in section 5, a participant or participant’s representative shall not make a claim for, or recover, civil damages from an equine activity sponsor, an equine professional, or another person for injury to or the death of the participant or property damage resulting from an inherent risk of an equine activity.

HISTORY: Pub Acts 1994, No. 351, § 3, eff March 30, 1995.

NOTES:

Prior codification:

MSA § 12.418(3)

Editor’s notes:

Pub Acts 1994, No. 351, § 7, eff March 30, 1995, provides:

“Sec. 7. This act applies only to a cause of action filed on or after the effective date of this act.”.

NOTES TO DECISIONS

Judgment granting summary disposition under MCR 2.116(C)(10) in favor of a horse owner in a neighbor’s personal injury action was affirmed because the neighbor failed to produce evidence in support of her claims under MCL 691.1665(b) and (d) as her injury resulted from an inherent risk of an equine activity and she did not prove otherwise. The claim was barred under MCL 691.1663. Beattie v. Mickalich, 284 Mich. App. 564, 773 N.W.2d 748, 2009 Mich. App. LEXIS 1445 (Mich. Ct. App. 2009), rev’d, 486 Mich. 1060, 784 N.W.2d 38, 2010 Mich. LEXIS 1452 (Mich. 2010).

Horse owner could invoke MCL § 691.1663 of the Michigan Equine Activity Liability Act (EALA), MCL §§ 691.1661 et seq., although she was not an equine professional or an equine activity sponsor because she fit within the definition of “another person” under § 3 of the EALA. Also, she properly was characterized as an equine participant as that term was defined in MCL § 691.1662. Gardner v. Simon, 445 F. Supp. 2d 786, 2006 U.S. Dist. LEXIS 57228 (W.D. Mich. 2006).

Bar to liability set forth in MCL § 691.1663 of the Michigan Equine Activity Liability Act (EALA), MCL §§ 691.1661 et seq., was subject to MCL § 691.1665, which provided that § 691.1663 of the EALA did not prevent liability for a negligent act or omission that proximately caused an injury. Accordingly, the EALA did not prevent liability on a rider’s claim that a horse owner was negligent in failing to warn the rider about the horse’s dangerous and viscous propensities; and whether the owner acted reasonably by suggesting to the rider that he ride the horse and not warning the rider that the horse was in need of further training, in light of the rider’s extensive experience with horses, was clearly a question of fact for a jury. Gardner v. Simon, 445 F. Supp. 2d 786, 2006 U.S. Dist. LEXIS 57228 (W.D. Mich. 2006).

Statutory references:

Section 5, above referred to, is § 691.1665.

LexisNexis(R) Michigan analytical references:

Michigan Law and Practice, Animals §§ 71, 73

Michigan Law and Practice, Torts § 74

ALR notes:

Liability of owner or bailor of horse for injury by horse to hirer or bailee thereof, 6 ALR4th 358

Validity, construction, and effect of agreement exempting operator of amusement facility from liability for personal injury or death of patron, 54 ALR5th 513

Liability of owner of horse to person injured or killed when kicked, bitten, knocked down, and the like, 85 ALR2d 1161

Liability of youth camp, its agents or employees, or of scouting leader or organization, for injury to child participant in program, 88 ALR3d 1236

Michigan Digest references:

Animals § 15

Research references:

4 Am Jur 2d, Animals §§ 96-100, 105, 106, 113-115, 122, 134, 136-141

1C Am Jur Pl & Pr Forms, Rev, Animals, §§ 3, 132-140

13 Am Jur Proof of Facts 2d 473, Knowledge of Animal’s Vicious Propensities

25 Am Jur Proof of Facts 2d 461, Failure to Use Due Care in Providing Horses for Hire

§ 691.1664.  Liability; exception; waiver.

Sec. 4.   (1) This act does not apply to a horse race meeting that is regulated by the racing law of 1980, Act No. 327 of the Public Acts of 1980, being sections 431.61 to 431.88 of the Michigan Compiled Laws.

(2) Two persons may agree in writing to a waiver of liability beyond the provisions of this act and such waiver shall be valid and binding by its terms.

HISTORY: Pub Acts 1994, No. 351, § 4, eff March 30, 1995.

NOTES:

Prior codification:

MSA § 12.418(4)

Editor’s notes:

Pub Acts 1994, No. 351, § 7, eff March 30, 1995, provides:

“Sec. 7. This act applies only to a cause of action filed on or after the effective date of this act.”.

NOTES TO DECISIONS

The Equine Activity Liability Act (EALA) provides immunity to commercial riding stables from claims for damages resulting from the inherent risks of horseback riding and being around horses, but the immunity provision does not apply to horse race meetings; a horse race meeting within the meaning of the EALA includes the activity of exercising a race horse at a track in preparation for a race; while the EALA did not confer immunity on a race track in a suit brought by a exercise rider who was injured when he was thrown from a horse, the release signed by the plaintiff was broad enough to protect the defendant from liability. Cole v. Ladbroke Racing Mich., Inc., 241 Mich. App. 1, 614 N.W.2d 169, 2000 Mich. App. LEXIS 110 (Mich. Ct. App. 2000), app. denied, 463 Mich. 972, 623 N.W.2d 595, 2001 Mich. LEXIS 223 (Mich. 2001).

LexisNexis(R) Michigan analytical references:

Michigan Law and Practice, Animals § 71

Michigan Law and Practice, Torts § 74

ALR notes:

Liability of owner or bailor of horse for injury by horse to hirer or bailee thereof, 6 ALR4th 358

Validity, construction, and effect of agreement exempting operator of amusement facility from liability for personal injury or death of patron, 54 ALR5th 513

Liability of owner of horse to person injured or killed when kicked, bitten, knocked down, and the like, 85 ALR2d 1161

Liability of youth camp, its agents or employees, or of scouting leader or organization, for injury to child participant in program, 88 ALR3d 1236

Michigan Digest references:

Animals § 13

Research references:

4 Am Jur 2d, Animals §§ 96-100, 105, 106, 113-115, 122, 134, 136-141

25 Am Jur Proof of Facts 2d 461, Failure to Use Due Care in Providing Horses for Hire

Legal periodicals:

Fayz, Annual Survey of Michigan Law, June 1, 1999-May 31, 2000: Torts, 47 Wayne L Rev 719 (2001)

§ 691.1664.  Liability; exception; waiver.

Sec. 4.   (1) This act does not apply to a horse race meeting that is regulated by the racing law of 1980, Act No. 327 of the Public Acts of 1980, being sections 431.61 to 431.88 of the Michigan Compiled Laws.

(2) Two persons may agree in writing to a waiver of liability beyond the provisions of this act and such waiver shall be valid and binding by its terms.

HISTORY: Pub Acts 1994, No. 351, § 4, eff March 30, 1995.

NOTES:

Prior codification:

MSA § 12.418(4)

Editor’s notes:

Pub Acts 1994, No. 351, § 7, eff March 30, 1995, provides:

“Sec. 7. This act applies only to a cause of action filed on or after the effective date of this act.”.

NOTES TO DECISIONS

The Equine Activity Liability Act (EALA) provides immunity to commercial riding stables from claims for damages resulting from the inherent risks of horseback riding and being around horses, but the immunity provision does not apply to horse race meetings; a horse race meeting within the meaning of the EALA includes the activity of exercising a race horse at a track in preparation for a race; while the EALA did not confer immunity on a race track in a suit brought by a exercise rider who was injured when he was thrown from a horse, the release signed by the plaintiff was broad enough to protect the defendant from liability. Cole v. Ladbroke Racing Mich., Inc., 241 Mich. App. 1, 614 N.W.2d 169, 2000 Mich. App. LEXIS 110 (Mich. Ct. App. 2000), app. denied, 463 Mich. 972, 623 N.W.2d 595, 2001 Mich. LEXIS 223 (Mich. 2001).

LexisNexis(R) Michigan analytical references:

Michigan Law and Practice, Animals § 71

Michigan Law and Practice, Torts § 74

ALR notes:

Liability of owner or bailor of horse for injury by horse to hirer or bailee thereof, 6 ALR4th 358

Validity, construction, and effect of agreement exempting operator of amusement facility from liability for personal injury or death of patron, 54 ALR5th 513

Liability of owner of horse to person injured or killed when kicked, bitten, knocked down, and the like, 85 ALR2d 1161

Liability of youth camp, its agents or employees, or of scouting leader or organization, for injury to child participant in program, 88 ALR3d 1236

Michigan Digest references:

Animals § 13

Research references:

4 Am Jur 2d, Animals §§ 96-100, 105, 106, 113-115, 122, 134, 136-141

25 Am Jur Proof of Facts 2d 461, Failure to Use Due Care in Providing Horses for Hire

Legal periodicals:

Fayz, Annual Survey of Michigan Law, June 1, 1999-May 31, 2000: Torts, 47 Wayne L Rev 719 (2001)

§ 691.1665.  Liability not prevented or limited; conditions.

Sec. 5.   Section 3 does not prevent or limit the liability of an equine activity sponsor, equine professional, or another person if the equine activity sponsor, equine professional, or other person does any of the following:

            (a) Provides equipment or tack and knows or should know that the equipment or tack is faulty, and the equipment or tack is faulty to the extent that it is a proximate cause of the injury, death, or damage.

            (b) Provides an equine and fails to make reasonable and prudent efforts to determine the ability of the participant to engage safely in the equine activity and to determine the ability of the participant to safely manage the particular equine. A person shall not rely upon a participant’s representations of his or her ability unless these representations are supported by reasonably sufficient detail.

            (c) Owns, leases, rents, has authorized use of, or otherwise is in lawful possession and control of land or facilities on which the participant sustained injury because of a dangerous latent condition of the land or facilities that is known to the equine activity sponsor, equine professional, or other person and for which warning signs are not conspicuously posted.

            (d) If the person is an equine activity sponsor or equine professional, commits an act or omission that constitutes a willful or wanton disregard for the safety of the participant, and that is a proximate cause of the injury, death, or damage.

            (e) If the person is not an equine activity sponsor or equine professional, commits a negligent act or omission that constitutes a proximate cause of the injury, death, or damage.

HISTORY: Pub Acts 1994, No. 351, § 5, eff March 30, 1995; amended by Pub Acts 2015, No. 87, eff September 21, 2015.

NOTES:

Prior codification:

MSA § 12.418(5)

Editor’s notes:

Pub Acts 1994, No. 351, § 7, eff March 30, 1995, provides:

“Sec. 7. This act applies only to a cause of action filed on or after the effective date of this act.”.

Amendment Notes

The 2015 amendment by PA 87 rewrote (d), which formerly read: “Commits a negligent act or omission that constitutes a proximate cause of the injury, death, or damage”; and added (e).

NOTES TO DECISIONS

Judgment granting summary disposition under MCR 2.116(C)(10) in favor of a horse owner in a neighbor’s personal injury action was affirmed because the neighbor failed to produce evidence in support of her claims under MCL 691.1665(b) and (d) as her injury resulted from an inherent risk of an equine activity and she did not prove otherwise. The claim was barred under MCL 691.1663. Beattie v. Mickalich, 284 Mich. App. 564, 773 N.W.2d 748, 2009 Mich. App. LEXIS 1445 (Mich. Ct. App. 2009), rev’d, 486 Mich. 1060, 784 N.W.2d 38, 2010 Mich. LEXIS 1452 (Mich. 2010).

Bar to liability set forth in MCL § 691.1663 of the Michigan Equine Activity Liability Act (EALA), MCL §§ 691.1661 et seq., was subject to MCL § 691.1665, which provided that § 691.1663 of the EALA did not prevent liability for a negligent act or omission that proximately caused an injury. Accordingly, the EALA did not prevent liability on a rider’s claim that a horse owner was negligent in failing to warn the rider about the horse’s dangerous and viscous propensities; and whether the owner acted reasonably by suggesting to the rider that he ride the horse and not warning the rider that the horse was in need of further training, in light of the rider’s extensive experience with horses, was clearly a question of fact for a jury. Gardner v. Simon, 445 F. Supp. 2d 786, 2006 U.S. Dist. LEXIS 57228 (W.D. Mich. 2006).

Statutory references:

Section 3, above referred to, is § 691.1663.

LexisNexis(R) Michigan analytical references:

Michigan Law and Practice, Animals § 71

ALR notes:

Liability of owner or bailor of horse for injury by horse to hirer or bailee thereof, 6 ALR4th 358

Validity, construction, and effect of agreement exempting operator of amusement facility from liability for personal injury or death of patron, 54 ALR5th 513

Liability of owner of horse to person injured or killed when kicked, bitten, knocked down, and the like, 85 ALR2d 1161

Liability of youth camp, its agents or employees, or of scouting leader or organization, for injury to child participant in program, 88 ALR3d 1236

Michigan Digest references:

Animals § 15

Research references:

4 Am Jur 2d, Animals §§ 96-100, 105, 106, 113-115, 122, 134, 136-141

1C Am Jur Pl & Pr Forms, Rev, Animals, §§ 3, 132-140

25 Am Jur Proof of Facts 2d 461, Failure to Use Due Care in Providing Horses for Hire

Act 351 of 1994  Equine Activity Liability Act prec 691.1661

AN ACT to regulate civil liability related to equine activities; and to prescribe certain duties for equine professionals.

The People of the State of Michigan enact:

HISTORY: ACT 351, 1994, p 1749, eff March 30, 1995.

NOTES:

Editor’s notes:

Pub Acts 1994, No. 351, § 7, eff March 30, 1995, provides:

“Sec. 7. This act applies only to a cause of action filed on or after the effective date of this act.”

§ 691.1666.  Notice; posting and maintenance of signs; contract; contents of notice.

Sec. 6.   (1) An equine professional shall post and maintain signs that contain the warning notice set forth in subsection (3). The signs shall be placed in a clearly visible location in close proximity to the equine activity. The warning notice shall appear on the sign in conspicuous letters no less than 1 inch in height.

(2) A written contract entered into by an equine professional for providing professional services, instruction, or rental of equipment, tack, or an equine to a participant, whether or not the contract involves an equine activity on or off the location or site of the equine professional’s business, shall contain in clearly readable print the warning notice set forth in subsection (3).

(3) A sign or contract described in this section shall contain substantially the following warning notice:

WARNING

Under the Michigan equine activity liability act, an equine professional is not liable for an injury to or the death of a participant in an equine activity resulting from an inherent risk of the equine activity.

HISTORY: Pub Acts 1994, No. 351, § 6, eff March 30, 1995.

NOTES:

Prior codification:

MSA § 12.418(6)

Editor’s notes:

Pub Acts 1994, No. 351, § 7, eff March 30, 1995, provides:

“Sec. 7. This act applies only to a cause of action filed on or after the effective date of this act.”.

LexisNexis(R) Michigan analytical references:

Michigan Law and Practice, Animals § 72

ALR notes:

Liability of owner or bailor of horse for injury by horse to hirer or bailee thereof, 6 ALR4th 358

Validity, construction, and effect of agreement exempting operator of amusement facility from liability for personal injury or death of patron, 54 ALR5th 513

Liability of owner of horse to person injured or killed when kicked, bitten, knocked down, and the like, 85 ALR2d 1161

Liability of youth camp, its agents or employees, or of scouting leader or organization, for injury to child participant in program, 88 ALR3d 1236

§ 691.1667.  Applicability of act.

Sec. 7.   This act applies only to a cause of action filed on or after the effective date of this act.

HISTORY: Pub Acts 1994, No. 351, § 7, eff March 30, 1995.

NOTES:

Prior codification:

MSA § 12.418(7)

 


Utah Equine Liability Statutes

Utah Code Annotated

Title 78B  Judicial Code 

Chapter 4  Limitations on Liability 

Part 2  Limitations on Liability for Equine and Livestock Activities

Utah Code Ann. § 78B-4-201  (2014)

78B-4-201.  Definitions.

As used in this part:

(1) “Equine” means any member of the equidae family.

(2) “Equine activity” means:

      (a) equine shows, fairs, competitions, performances, racing, sales, or parades that involve any breeds of equines and any equine disciplines, including dressage, hunter and jumper horse shows, grand prix jumping, multiple-day events, combined training, rodeos, driving, pulling, cutting, polo, steeple chasing, hunting, endurance trail riding, and western games;

      (b) boarding or training equines;

      (c) teaching persons equestrian skills;

      (d) riding, inspecting, or evaluating an equine owned by another person regardless of whether the owner receives monetary or other valuable consideration;

      (e) riding, inspecting, or evaluating an equine by a prospective purchaser; or

      (f) other equine activities of any type including rides, trips, hunts, or informal or spontaneous activities sponsored by an equine activity sponsor.

(3) “Equine activity sponsor” means an individual, group, governmental entity, club, partnership, or corporation, whether operating for profit or as a nonprofit entity, which sponsors, organizes, or provides facilities for an equine activity, including:

      (a) pony clubs, hunt clubs, riding clubs, 4-H programs, therapeutic riding programs, and public and private schools and postsecondary educational institutions that sponsor equine activities; and

      (b) operators, instructors, and promoters of equine facilities, stables, clubhouses, ponyride strings, fairs, and arenas.

(4) “Equine professional” means a person compensated for an equine activity by:

      (a) instructing a participant;

      (b) renting to a participant an equine to ride, drive, or be a passenger upon the equine; or

      (c) renting equine equipment or tack to a participant.

(5) “Inherent risk” with regard to equine or livestock activities means those dangers or conditions which are an integral part of equine or livestock activities, which may include:

      (a) the propensity of the animal to behave in ways that may result in injury, harm, or death to persons on or around them;

      (b) the unpredictability of the animal’s reaction to outside stimulation such as sounds, sudden movement, and unfamiliar objects, persons, or other animals;

      (c) collisions with other animals or objects; or

      (d) the potential of a participant to act in a negligent manner that may contribute to injury to the participant or others, such as failing to maintain control over the animal or not acting within his or her ability.

(6) “Livestock” means all domesticated animals used in the production of food, fiber, or livestock activities.

(7) “Livestock activity” means:

      (a) livestock shows, fairs, competitions, performances, packing events, or parades or rodeos that involve any or all breeds of livestock;

      (b) using livestock to pull carts or to carry packs or other items;

      (c) using livestock to pull travois-type carriers during rescue or emergency situations;

      (d) livestock training or teaching activities or both;

      (e) taking livestock on public relations trips or visits to schools or nursing homes;

      (f) boarding livestock;

      (g) riding, inspecting, or evaluating any livestock belonging to another, whether or not the owner has received some monetary consideration or other thing of value for the use of the livestock or is permitting a prospective purchaser of the livestock to ride, inspect, or evaluate the livestock;

      (h) using livestock in wool production;

      (i) rides, trips, or other livestock activities of any type however informal or impromptu that are sponsored by a livestock activity sponsor; and

      (j) trimming the feet of any livestock.

(8) “Livestock activity sponsor” means an individual, group, governmental entity, club, partnership, or corporation, whether operating for profit or as a nonprofit entity, which sponsors, organizes, or provides facilities for a livestock activity, including:

      (a) livestock clubs, 4-H programs, therapeutic riding programs, and public and private schools and postsecondary educational institutions that sponsor livestock activities; and

      (b) operators, instructors, and promoters of livestock facilities, stables, clubhouses, fairs, and arenas.

(9) “Livestock professional” means a person compensated for a livestock activity by:

      (a) instructing a participant;

      (b) renting to a participant any livestock for the purpose of riding, driving, or being a passenger upon the livestock; or

      (c) renting livestock equipment or tack to a participant.

      (10) “Participant” means any person, whether amateur or professional, who directly engages in an equine activity or livestock activity, regardless of whether a fee has been paid to participate.

(11)  (a) “Person engaged in an equine or livestock activity” means a person who rides, trains, leads, drives, or works with an equine or livestock, respectively.

      (b) Subsection (11)(a) does not include a spectator at an equine or livestock activity or a participant at an equine or livestock activity who does not ride, train, lead, or drive an equine or any livestock.

78B-4-202.  Equine and livestock activity liability limitations.

(1) It shall be presumed that participants in equine or livestock activities are aware of and understand that there are inherent risks associated with these activities.

(2) An equine activity sponsor, equine professional, livestock activity sponsor, or livestock professional is not liable for an injury to or the death of a participant due to the inherent risks associated with these activities, unless the sponsor or professional:

(a)  (i) provided the equipment or tack;

      (ii) the equipment or tack caused the injury; and

      (iii) the equipment failure was due to the sponsor’s or professional’s negligence;

(b) failed to make reasonable efforts to determine whether the equine or livestock could behave in a manner consistent with the activity with the participant;

(c) owns, leases, rents, or is in legal possession and control of land or facilities upon which the participant sustained injuries because of a dangerous condition which was known to or should have been known to the sponsor or professional and for which warning signs have not been conspicuously posted;

(d)  (i) commits an act or omission that constitutes negligence, gross negligence, or willful or wanton disregard for the safety of the participant; and

      (ii) that act or omission causes the injury; or

(e) intentionally injures or causes the injury to the participant.

(3) This chapter does not prevent or limit the liability of an equine activity sponsor, an equine professional, a livestock activity sponsor, or a livestock professional who is:

(a) a veterinarian licensed under Title 58, Chapter 28, Veterinary Practice Act, in an action to recover for damages incurred in the course of providing professional treatment of an equine;

(b) liable under Title 4, Chapter 25, Estrays and Trespassing Animals; or

(c) liable under Title 78B, Chapter 7, Utah Product Liability Act.

78B-4-203.  Signs to be posted listing inherent risks and liability limitations.

(1) An equine or livestock activity sponsor shall provide notice to participants of the equine or livestock activity that there are inherent risks of participating and that the sponsor is not liable for certain of those risks.

(2) Notice shall be provided by:

            (a) posting a sign in a prominent location within the area being used for the activity; or

            (b) providing a document or release for the participant, or the participant’s legal guardian if the participant is a minor, to sign.

(3) The notice provided by the sign or document shall be sufficient if it includes the definition of inherent risk in Section 78B-4-201 and states that the sponsor is not liable for those inherent risks.

(4) Notwithstanding Subsection (1), signs are not required to be posted for parades and activities that fall within Subsections 78B-4-201(2)(f) and (7)(c), (e), (g), (h), and (j).

 


Hawaii attempts to limit liability increases the amount of money every injured party will recover. Legislation to limit liability lost recreation business the opportunity to use a release

Hawaii attempts to limit liability increases the amount of money every injured party will recover. Legislation to limit liability lost recreation business the opportunity to use a release

Wheelock vs. Sport Kites, 839 F. Supp. 730 (9th Cir. 1993); and,

King v. CJM Country Stables, 315 F. Supp. 2d 1061; 2004 U.S. Dist. LEXIS 7511

Hawaii Revised Statutes, Section 663-1.54

Badly written statute which was already full of holes was turned absolutely worthless by Hawaiian Federal District Court Decision. You cannot give up the best defense you have when you try and gain more defenses.

In Wheelock vs. Sport Kites

Plaintiff: Mary Rose Wheelock, individually, as Administratrix of the Estate of David William Wheelock, as Guardian Ad Litem for Maggie Wheelock and David William Wheelock, minors

Defendant: Sport Kites, Inc., a foreign corporation, dba Wills Wing, Rob Kells, an individual, Kualoa Ranch, Inc., a Hawaii corporation, and Sport Aviation Hawaii, Inc., a Hawaii corporation

Plaintiff Claims: Negligence, Gross Negligence and Product Liability

Defendant Defenses: Release

Holding: Holding for the Defendant on the Negligence claim and for the Plaintiff on the Gross Negligence and Product Liability claims.

In King v. CJM Country Stables

Plaintiff: John King and Patricia King

Defendant: CJM Country Stables

Plaintiff’s Claims: Negligence, Negligence Per Se, Strict Liability, Intentional, Negligent Infliction of Emotional Distress Loss of Consortium, Punitive Damages, Respondeat Superior

Defendant Defenses: release and the Hawaiian Recreational Activity Liability Statute

Holding: For the Plaintiff

Tourists are the life blood of the outdoor recreation industry. No place does that ring any truer than Hawaii. Without tourists who are there for a vacation or as a stop on a cruise ship, Hawaii’s economy would grind to a stop.

In an effort to limit liability for outdoor recreation activities, the recreation providers passed a law attempting to reduce or prevent lawsuits for injuries tourists received recreating.  However, this Hawaiian law backfired by eliminating the use of releases a defense against a claim in the statute.

To set the stage for Hawaii’s move towards recreation legislation, it is important to acknowledge the development of Hawaiian common law.  The landmark case, Wheelock vs. Sport Kites, 839 F. Supp. 730 (9th Cir. 1993), was the first time the Hawaiian courts dealt with whether an express release of liability bars all claims of negligence.  Wheelock plunged to his death while paragliding when all the lines connecting the canopy to his harness broke.  Wheelock’s wife sued, even though her husband signed a waiver releasing Sport Kites.  The court upheld the release for negligence, declaring that Wheelock assumed the risk of paragliding.

The court did not allow the release to bar claims for gross negligence and the product liability claim.

Despite the Wheelock decision, the statewide Activity Owners Association of Hawaii believed litigation over recreation accidents needed to be reduced. The belief was it would lower insurance premiums and promote business growth. (See Ammie Roseman-Orr, Recreational Activity Liability in Hawai’i: Are Waiver Worth the Paper on Which They Are Written?, 21 U. Haw. L. Rev. 715.) Without a law, every accident had the opportunity to test the waters of the legal system in hopes of a reward.  The Recreational Activity Liability Statute was enacted in 1997 to reduce recreation accident litigation’

§ 663-1.54.  Recreational activity liability.

(a) Any person who owns or operates a business providing recreational activities to the public, such as, without limitation, scuba or skin diving, sky diving, bicycle tours, and mountain climbing, shall exercise reasonable care to ensure the safety of patrons and the public, and shall be liable for damages resulting from negligent acts or omissions of the person which cause injury.

(b) Notwithstanding subsection (a), owners and operators of recreational activities shall not be liable for damages for injuries to a patron resulting from inherent risks associated with the recreational activity if the patron participating in the recreational activity voluntarily signs a written release waiving the owner or operator’s liability for damages for injuries resulting from the inherent risks. No waiver shall be valid unless:

(1) The owner or operator first provides full disclosure of the inherent risks associated with the recreational activity; and

(2) The owner or operator takes reasonable steps to ensure that each patron is physically able to participate in the activity and is given the necessary instruction to participate in the activity safely.

(c) The determination of whether a risk is inherent or not is for the trier of fact. As used in this section an “inherent risk”:

(1) Is a danger that a reasonable person would understand to be associated with the activity by the very nature of the activity engaged in;

(2) Is a danger that a reasonable person would understand to exist despite the owner or operator’s exercise of reasonable care to eliminate or minimize the danger, and is generally beyond the control of the owner or operator; and

(3) Does not result from the negligence, gross negligence, or wanton act or omission of the owner or operator.

This statute superseded the common law, which developed through Wheelock and the cases preceding it.

The first case to review the statute was King v. CJM Country Stables, 315 F. Supp. 2d 1061; 2004 U.S. Dist. LEXIS 7511. In this case, the plaintiff was on a seven-day cruise that left Vancouver and went to Hawaii. While in Hawaii, the plaintiff booked a horseback ride through the cruise, with the defendant stable. While riding, the plaintiff was bit by another rider’s horse. She sued.

The court immediately reviewed the above Hawaiian Recreational Activity Liability Statute. Reading the statute the court concluded:

…these sections provide that a trier of fact must determine if injuries were caused by the “inherent risks” of a recreational activity. And if the trier of fact finds that the injuries were “caused solely by the inherent risk and unpredictable nature” of a horse, then there is a rebuttable presumption that the defendant’s negligence did not cause the injuries.

The court looked at the language of the release which states the trier of fact must determine if the injuries were caused by the activity, or in this case, the horse. The court found that under the statute, the court could not support the defendant’s motion for summary judgment because the statute “…explicitly precludes waiving liability for negligence.”

Since there was a genuine issue of material fact, meaning there were facts important to the case that had two different versions or interpretations (duh!) then the jury had to decide the case no matter what. The statute placed a burden on the plaintiff that was greater than the normal burden of proof, however the decision placed a greater burden on defendants in the increased cost of litigating cases.

…whether Defendant was negligent; and the Release Form’s validity as a waiver of liability, which depends on whether the horse-biting incident was an “inherent risk” of the recreational activity that Defendant provided to Plaintiffs. Defendant cannot satisfy its burden and thus, is not entitled to judgment as a matter of law.

So?

The statute left an enormous hole that will allow every injured party to recover something. The statute states that an “inherent risk” must be determined by the trier of fact, and that negligence cannot be an inherent risk. Consequently, the statute is worthless.

It gets worse. Under the previous common law, the judge could determine the inherent risk and grant summary judgment. In the case of Wheelock, the judge determined that, as a matter of law, equipment failure is an obvious risk of paragliding and set this as a precedent for future paragliding cases.  The recreation statute, on the contrary, declares that the trier of fact must determine the inherent risks of the activity. The trier of fact is the jury. Therefore, every claim will go to trial. That increases the cost and increases the chance that a settlement will occur to reduce the cost of litigation.

Summary judgment cannot be granted because a jury trial must be held to determine if the risk is inherent.  The cost of litigating jury trials will be substantially higher than the cost of a motion for summary judgment.  A precedent cannot be set because it is determined, as a matter of fact, so the inherent risks must be determined in every case.

Even cases with identical inherent risks and injuries must be brought before a trier of fact, with the possibility for differing results.  Second, the statute explicitly states that providers will be liable for negligence.  Wheelock previously determined negligence could be an inherent risk that customers assumed when they signed the waiver for, thereby releasing the provider from liability.  The statute no longer allowed the customer to assume the risk of negligence, making the statute a major step backward for activity providers.

So Now What?

Although a good effort by the Activity Owners Association of Hawaiian, they probably wrote the legislation without help from attorneys or those knowledgeable in how the statute would be applied (someone who had been in a courtroom with a suit and briefcase).

The statute is great in its intent; the actual way it was written makes the statute the best thing that could happen for any injured person in Hawaii. No matter what, this statute is going to allow the plaintiff to recover because the cost of fighting every claim through trial is at least $50,000 or more. Consequently, it will always be cheaper to settle than to sue.

What do you think? Leave a comment.

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King v. CJM Country Stables, 315 F. Supp. 2d 1061; 2004 U.S. Dist. LEXIS 7511

King v. CJM Country Stables, 315 F. Supp. 2d 1061; 2004 U.S. Dist. LEXIS 7511

John King and Patricia King, Plaintiffs, vs. CJM Country Stables, Defendant.

Civ. No. 03-00240 ACK/BMK

United States District Court for the District of Hawaii

315 F. Supp. 2d 1061; 2004 U.S. Dist. LEXIS 7511

February 18, 2004, Decided

February 18, 2004, Filed

DISPOSITION: [**1] Defendant’s Motion for Summary Judgment denied.

COUNSEL: For JOHN KING, PATRICIA KING, plaintiffs: David C. Schutter, Christopher A. Dias, Schutter Dias Smith & Wong, Honolulu, HI.

For CJM COUNTRY STABLES, INC., defendant: Gale L.F. Ching, Mitzi A. Lee, Jane Kwan, Hisaka Stone Goto Yoshida Cosgrove & Ching, Honolulu, HI.

JUDGES: Alan C Kay, United States District Judge.

OPINION BY: Alan C Kay

OPINION:

[*1062] ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

BACKGROUND

This matter comes before the Court on Defendant CJM Country Stables’ (“CJM” or “Defendant”) Motion for Summary Judgment. The Motion for Summary Judgment argues that Patricia and John King (collectively, “Plaintiffs”) signed a valid waiver that releases CJM from liability for the injuries Plaintiffs allegedly suffered when they participated in a recreational horseback riding activity provided by the Defendant.

I. Factual History.

On September 16, 2001, Plaintiffs began an 11-night Royal Caribbean cruise sailing from Vancouver to and around the Hawaiian islands. On September 26, 2001, the cruise ship docked in Nawiliwili, on the Island of Kauai. That day, Plaintiffs participated in an organized horseback ride that [**2] they arranged through the shore excursion desk on board their ship.

Upon arriving at the stables, the horseback riding participants were asked to read and sign a form entitled “Participant Agreement, Release, and Acknowledgement of Risk,” (hereinafter the “Release Form”). Both Plaintiffs signed this Release Form. (Motion for Summary Judgment, Exs. A, D). The Release Form provides, in relevant part, that “in consideration of the services of CJM Country Stables, Inc.” the signatory agrees “to release and discharge C.J.M., on behalf of [himself or herself] … as follows:

1. I acknowledge that horseback trailrides entails known and unanticipated risks which could result in physical or emotional injury, … to myself … I understand that such risks simply cannot [*1063] be eliminated without jeopardizing the essential qualities of the activity. The risks include, among other things: … horses, irrespective of their previous behavior and characteristics, may act or react unpredictably based upon instinct, fright, or lack of proper control by rider; latent or apparent defects or conditions in … animals …; acts of other participants in this activity;… contact with plants or animals; [**3] … Furthermore, C.J.M. guides have difficult jobs to perform. They seek safety, but they are not infallible … They may give inadequate warnings or instructions, and the equipment being used might malfunction.

2. I expressly agree and promise to accept and assume all of the risks existing in this activity. My participation in this activity is purely voluntary, and I elect to participate in spite of the risks.

3. I hereby voluntarily release … and hold harmless C.J.M. from any and all claims, demands, or causes of action which are in any way connected with my participation in this activity … including any such Claims which allege negligent acts or omissions of C.J.M … I have had sufficient opportunity to read this entire document, I have read and understood it, and I agree to be bound by its terms.”

Motion for Summary Judgment, Exs. A, D.

After signing the Release Forms, each of the riders was assigned a horse and proceeded on the trail ride. The parties agree that at some point during the ride Mrs. King was bitten by another rider’s horse. Plaintiffs allege that as a result of this incident they have suffered severe and permanent bodily injuries, pain [**4] and suffering, past and future medical expenses, lost wages, and other special and general damages. Plaintiffs claim that Defendant’s negligence was the proximate cause of these damages. Defendant argues that the signed Release Forms validly waive its liability for the Plaintiffs’ alleged injuries.

II. Procedural History.

Plaintiffs filed their Complaint in state court on February 27, 2003 and it was removed to this Court on May 14, 2003. The Complaint sets forth claims of:

I. Negligence; II. Negligence Per Se; III. Strict Liability; IV. Intentional and Negligent Infliction of Emotional Distress; V. Loss of Consortium; VI. Punitive Damages; and VII. Respondeat Superior.

On January 14, 2004, CJM filed this Motion for Summary Judgment. The Motion for Summary Judgment argues that Defendant is entitled to judgment as a matter of law because the Plaintiffs signed a valid waiver of liability. Plaintiffs filed their Opposition to the Motion for Summary Judgment on January 30, 2004.

The Opposition argues that the Motion for Summary Judgment should be denied because the Release Form is unenforceable as a waiver and in any event, does not include negligence claims. If the Court [**5] is inclined to grant Defendant’s Motion for Summary Judgment, Plaintiff alternatively requests that the Court order a continuance of the motion pursuant to Federal Rules of Civil Procedure, Rule 56(f). n1 Defendant filed its Reply on February 5, 2004. The Reply argues that negligence is explicitly covered by the waiver. The Reply does not address Plaintiff’s alternative request for a Rule 56(f) continuance.

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

n1 The Court need not address this alternative request because it is denying Defendant’s Motion for Summary Judgment.

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

STANDARD

The purpose of summary judgment is to identify and dispose of factually unsupported [*1064] claims and defenses. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). Summary judgment is therefore appropriate when the “pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving [**6] party is entitled to judgment as a matter of law.” n2 Fed. R. Civ. P. 56(c).

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

n2 Affidavits made on personal knowledge and setting forth facts as would be admissible at trial are evidence. Fed. R. Civ. P. 56(e). Legal memoranda and oral argument are not evidence and do not create issues of fact. See British Airways Bd. v. Boeing Co., 585 F.2d 946, 952 (9th Cir. 1978).

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

“A fact is ‘material’ when, under the governing substantive law, it could affect the outcome of the case. A genuine issue of material fact arises if ‘the evidence is such that a reasonable jury could return a verdict for the nonmoving party.’” n3 Thrifty Oil Co. v. Bank of America Nat’l Trust & Sav. Ass’n, 310 F.3d 1188, 1194 (9th Cir. 2002) (quoting Union Sch. Dist. v. Smith, 15 F.3d 1519, 1523 (9th Cir. 1994)) (internal citations omitted). Conversely, where the evidence “could not lead a rational trier of fact to find for the nonmoving party, there is no [**7] ‘genuine issue for trial.’” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986) (quoting First Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 289, 20 L. Ed. 2d 569, 88 S. Ct. 1575 (1968)).

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

n3 Disputes as to immaterial issues of fact do “not preclude summary judgment.” Lynn v. Sheet Metal Workers’ Int’l Ass’n, 804 F.2d 1472, 1478 (9th Cir. 1986).

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

The moving party has the burden of persuading the Court as to the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. The moving party may do so with affirmative evidence or by “’showing’—that is pointing out to the district court—that there is an absence of evidence to support the nonmoving party’s case.” Id. at 325. All evidence and reasonable inferences drawn therefrom are considered in the light most favorable to the nonmoving party. See, e.g., T.W. Elec. Serv. v. Pacific Elec. Contractors Ass’n, 809 F.2d 626,

630-31 (9th Cir. 1987). [**8] So, too, the Court’s role is not to make credibility assessments. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). Accordingly, if “reasonable minds could differ as to the import of the evidence,” summary judgment will be denied. Id. at 250-51.

Once the moving party satisfies its burden, however, the nonmoving party cannot simply rest on the pleadings or argue that any disagreement or “metaphysical doubt” about a material issue of fact precludes summary judgment. See Celotex, 477 U.S. at 322-23, 91 L. Ed. 2d 265; Matsushita Elec., 475 U.S. at 586; California Arch. Bldg. Prods., Inc. v. Franciscan Ceramics, Inc., 818 F.2d 1466, 1468 (9th Cir. 1987). Nor will uncorroborated allegations and “self-serving testimony” create a genuine issue of material fact. Villiarmo v. Aloha Island Air, Inc., 281 F.3d 1054, 1061 (9th Cir. 2002); see also T.W. Elec. Serv., 809 F.2d at 630. The nonmoving party must instead set forth “significant probative evidence tending to support the complaint.” T.W. Elec. Serv., 809 F.2d at 630. Summary judgment [**9] will thus be granted against a party who fails to demonstrate facts’ sufficient to establish an element essential to his case when that party will ultimately bear the burden of proof at proof at trial. See Celotex, 477 U.S. at 322.

[*1065] DISCUSSION

At issue in this Motion for Summary Judgment is whether the Release Form signed by Plaintiffs waives Defendant’s liability for the Plaintiffs’ alleged horseback riding injuries. Plaintiffs assert that the Release Form is unenforceable as a waiver and regardless, does not waive Defendant’s liability for its own negligent conduct allegedly contributing to their injuries.

Defendant claims that the Release Form constitutes a valid waiver of liability for Plaintiffs’ alleged injuries because the form clearly lists the risks associated with horseback riding and the horse-biting incident at issue constitutes one of these risks. Defendant also argues that the waiver explicitly waives liability for negligence.

As movant, Defendant has the burden of establishing that it is entitled to judgment as a matter of law by showing that there are no genuine issues of material fact as to whether the Release Form validly waives its liability [**10] for the Plaintiffs’ alleged injuries.

I. Hawaii Revised Statutes, Section 663-1.54.

Although neither party cites or discusses it, the Court finds that Hawaii Revised Statutes, Section 663-1.54, addressing “Recreational activity liability, “ applies to this case. Section 663-1.54 provides:

(a) Any person who owns or operates a business providing recreational activities to the public, such as, without limitation, scuba or skin diving, sky diving, bicycle tours, and mountain climbing, shall exercise reasonable care to ensure the safety of patrons and the public, and shall be liable for damages resulting from negligent acts or omissions of the person which cause injury.

(b) Notwithstanding subsection (a), owners and operators of recreational activities shall not be liable for damages for injuries to a patron resulting from inherent risks associated with the recreational activity if the patron participating in the recreational activity voluntarily signs a written release waiving the owner or operator’s liability for damages for injuries resulting from the inherent risks. No waiver shall be valid [**11] unless:

(1) The owner or operator first provides full disclosure of the inherent risks associated with the recreational activity; and

(2) The owner or operator takes reasonable steps to ensure that each patron is physically able to participate in the activity and is given the necessary instruction to participate in the activity safely.

(c) The determination of whether a risk is inherent or not is for the

trier of fact. As used in this section an “inherent risk”:

(1) Is a danger that a reasonable person would understand to be associated with the activity by the very nature of the activity engaged in;

(2) Is a danger that a reasonable person would understand to exist despite the owner or operator’s exercise of reasonable care to eliminate or minimize the danger, and is generally beyond the control of the owner or operator; and

(3) Does not result from the negligence, gross negligence, or wanton act or omission of the owner or operator.

HRS § 663-1.54 (emphasis added).

A. Legislative History.

There is no Hawaii case law interpreting Section 663-1.54. The Standing Committee that drafted Section 663-1.54, described its [**12] purpose and function as follows:

“This measure is necessary to more clearly define the liability of providers of commercial recreational activities by statutorily validating inherent risk waivers signed by the participants. Your [*1066] Committee further finds that these inherent risk waivers … do not extend immunity to providers for damages resulting from negligence.”

Haw. Stand. Comm. Rep. No. 1537, in 1997 Senate Journal, at 1476. In substituting the provisions of Senate Bill 647 with those of House Bill number 581, which was codified into Section 663-1.54, the Standing Committee eliminated “the substantive provisions of S.B. No. 647, S.D.1, the Senate companion measure,” including a section “exempting the provisions of Chapter 663B, existing law regarding equine liability.” Id. n4 Thus, equine activities, such as the one at issue here, are covered by Section 663-1.54. n5

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

n4 Section 663B-2(a) provides: “In any civil action for injury … of a participant, there shall be a presumption that the injury … was not caused by the negligence of an equine activity sponsor … or their employees or agents, if the injury … was caused solely by the inherent risk and unpredictable nature of the equine. An injured person … may rebut the presumption of no negligence by a preponderance of the evidence.” HRS § 663B-2(a). [**13]

n5 Section 663-1.54, addressing recreational activity liability, and Section 663B, addressing equine activities, are not mutually exclusive. Read together, these sections provide that a trier of fact must determine if injuries were caused by the “inherent risks” of a recreational activity. And if the trier of fact finds that the injuries were “caused solely by the inherent risk and unpredictable nature” of a horse, then there is a rebuttable presumption that the defendant’s negligence did not cause the injuries. The injured plaintiff may then rebut the presumption of no negligence by a preponderance of the evidence.

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

Subsection (c), providing that “the determination of whether a risk is inherent or not is for the trier of fact,” is pertinent to the resolution of this Motion for Summary Judgment. HRS § 663-1.54(c). Unfortunately, legislative materials specifically addressing this part of Section 663-1.54 are not helpful to this analysis as they consist of the following: “Now let me say that we have, and I supposed admirably, set out to define what inherent risks are in subsection (c), but whether [**14] this is sufficient is not clear.” Debate on Haw. Stand. Comm. Rep. No. 753, in 1997 House Journal, at 408 (statement of Rep. Pendleton).

It is clear that given the statute’s 1997 enactment and specific focus on exculpatory agreements made with those “who own[ ] or operate[ ] a business providing recreational activities to the public” that on the issue of written waivers, Section 663-1.54 supplants every single case on which the parties rely to make their substantive arguments. These cases, however, may be pertinent to other possibly relevant claims and defenses such as negligence and implied assumption of risk. Most of the cases cited were decided prior to the statute’s enactment n6 and those that [*1067] were decided after 1997 do not address the effect of waivers on recreational activity liability as in Section 663-1.54. n7 Moreover, most of these cases do not interpret Hawaii law. Likewise, Defendant’s citation to Section 663-10.95, addressing the liability of “motorsports facility “ owners and operators, is inapplicable to this case. Motion for Summary Judgment, at 13 (citing HRS § 663-10.95). Based on the foregoing, the Court will apply Section 663-1.54 in resolving Defendant’s Motion [**15] for Summary Judgment.

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

n6 See Grbac v. Reading Fair Co., 688 F.2d 215 (3rd Cir. 1982); Wheelock v. Sport Kites, Inc., 839 F. Supp. 730 (D. Haw. 1993); Marshall v. Blue Springs Corp., 641 N.E.2d 92 (1994); Huber v. Hovey, 501 N.W.2d 53 (1993); Masciola v. Chicago Metropolitan Ski Council, 257 Ill. App. 3d 313, 628 N.E.2d 1067, 195 Ill. Dec. 603 (1993); Swierkosz v. Starved Rock Stables, 239 Ill. App. 3d 1017, 607 N.E.2d 280, 180 Ill. Dec. 386 (1993); Buchan v. U.S. Cycling Federation, Inc., 227 Cal. App. 3d 134, 277 Cal. Rptr. 887 (1991); Dobratz v. Thomson, 161 Wis. 2d 502, 468 N.W.2d 654 (1991); Guido v. Koopman, 1 Cal. App. 4th 837, 2 Cal. Rptr. 2d 437 (1991); Saenz v. Whitewater Voyages, Inc., 276 Cal. Rptr. 672, 226 Cal. App. 3d 758 (1990); Heil Valley Ranch, Inc. v. Simkin, 784 P.2d 781 (Colo. 1989); Harris v. Walker, 119 Ill. 2d 542, 519 N.E.2d 917, 116 Ill. Dec. 702 (1988); Kurashige v. Indian Dunes, Inc., 200 Cal. App. 3d 606, 246 Cal. Rptr. 310 (1988); Madison v. Superior Court, 203 Cal. App. 3d 589, 250 Cal.

Rptr. 299 (1988); Hulsey v. Elsinore Parachute Center, 168 Cal. App. 3d 333, 214 Cal. Rptr. 194 (1985); McAtee v. Newhall Land & Farming Co., 169 Cal. App. 3d 1031, 216 Cal. Rptr. 465 (1985); Krohnert v. Yacht Systems Hawaii, Inc., 4 Haw.

App. 190, 664 P.2d 738 (1983); Hewitt III v. Miller, 11 Wn. App. 72, 521 P.2d

244 (1974); Delta Air Lines, Inc. v. Douglas Aircraft Co., 238 Cal. App. 2d 95,

47 Cal. Rptr. 518 (1965); Lee v. Allied Sports Associates, Inc., 349 Mass. 544,

209 N.E.2d 329 (1965); Ciofalo v. Vic Tanney Gyms, Inc., 10 N.Y.2d 294, 177 N.E.2d 925, 220 N.Y.S.2d 962 (1961). [**16]

n7 Foronda v. Hawaii International Boxing Club, 96 Haw. 51, 25 P.3d 826 (2001) (holding that primary implied assumption of risk, evidenced by a signed waiver and plaintiff’s free participation in a boxing match, is a complete defense to claims of negligence where defendant’s conduct is an inherent risk of the sports activity); Fujimoto v. Au, 95 Haw. 116, 19 P.3d 699 (2001) (finding contract waiving general partners and landowners’ liability unenforceable where limited partners with unequal bargaining power sought to recover their investment in limited partnerships formed to develop real estate).

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

B. Application.

Under Section 663-1.54, the Court must deny Defendant’s Motion for Summary Judgment for two reasons. First, Defendant argues that the Release Form validly waives Plaintiffs’ negligence claims but Section 663-1.54(a) explicitly precludes waiving liability for negligence. Thus, paragraph three (3) of the Release Form is void as to negligence.

Secondly, Section 663-1.54(c)’s provision that the “determination of whether a risk is inherent or not is for the [**17] trier of fact” automatically creates a genuine issue of material fact as to whether the horse-biting incident was an inherent of the horseback riding activity in which Plaintiffs participated. This statutorily-imposed genuine issue of fact precludes summary judgment as a matter of law. The trier of fact will have to decide whether the Release Form constitutes a valid waiver of Defendant’s liability. n8

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

n8 The legislative history indicates that the statute’s proponents did not aim for this result. See Ammie I. Roseman-Orr, Comment, Recreational Activity Liability in Hawai’i: Are Waivers Worth The Paper On Which Thev Are Written?, 21. U. Haw. L. Rev. 715, 743-44 (1999) (“From the legislative testimony, it is apparent that the industry did not intend, nor was it aware, that this new law might eliminate summary judgment determinations of whether waivers are valid … Hawai’i’s new recreational activity liability statute, championed by the activity providers to protect the industry has instead eroded the common law protection it otherwise enjoyed.”).

– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – – [**18]

The Court finds that there are genuine issues of material fact as to: [1] whether Defendant was negligent; and [2] the Release Form’s validity as a waiver of liability, which depends on whether the horse-biting incident was an “inherent risk” of the recreational activity that Defendant provided to Plaintiffs. Defendant cannot satisfy its burden and thus, is not entitled to judgment as a matter of law.

CONCLUSION

The Court holds that there are genuine issues of material fact as to Defendant’s negligence and as to whether the Release Form constitutes a valid waiver of Defendant’s liability and accordingly DENIES Defendant’s Motion for Summary Judgment.

IT IS SO ORDERED.

DATED: Honolulu, Hawii, 18 FEB 2004

Alan C Kay

United States District Judge

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Wheelock v. Sport Kites, Inc, 839 F. Supp. 730; 1993 U.S. Dist. LEXIS 17050

Wheelock v. Sport Kites, Inc, 839 F. Supp. 730; 1993 U.S. Dist. LEXIS 17050

Mary Rose Wheelock, individually, as Administratrix of the Estate of David William Wheelock, as Guardian Ad Litem for Maggie Wheelock and David William Wheelock, minors, Plaintiff, v. Sport Kites, Inc., a foreign corporation, dba Wills Wing, Rob Kells, an individual, Kualoa Ranch, Inc., a Hawaii corporation, and Sport Aviation Hawaii, Inc., a Hawaii corporation, Defendants.

Civ. No. 92-00768 HMF

United States District Court for the District of Hawaii

839 F. Supp. 730; 1993 U.S. Dist. LEXIS 17050

December 1, 1993, Decided

December 1, 1993, Filed

Counsel: [**1] For Mary Rose Wheelock, individually gal, Maggie Wheelock, minor gal, David William Wheelock, minor, plaintiff: Jeffrey R. Buchli, Carroll Smith & Buchli, Honolulu, HI. John S. Carroll, Carroll Smith & Buchli, Honolulu, HI.

For Sport Kites, Inc., a foreign corporation dba Wills Wing, Rob Kells, an individual, defendants: Leighton K. Oshima, Patrick I. Wong, Wong Oshima & Kondo, Honolulu, HI. For Kualoa Ranch, Inc., a Hawaii corporation, defendant:

Sidney K. Ayabe, a, Rodney S. Nishida, Libkuman Ventura Ayabe Chong & Nishimoto, Honolulu, HI. For Sport Aviation Hawaii, Inc., a Hawaii corporation, defendant:

Randolph R. Slaton, Law Offices of Randolph R. Slaton, Honolulu, HI.

For Kualoa Ranch, Inc., cross-claimant: Sidney K. Ayabe, a, Libkuman Ventura Ayabe Chong & Nishimoto, Honolulu, HI.

For Sport Kites, Inc. dba Wills Wing, ROB KELLS, cross-defendants: Leighton K.

Oshima, Patrick I. Wong, Wong Oshima & Kondo, Honolulu, HI.

For Sport Aviation Hawaii, Inc., cross-claimant: Randolph R. Slaton, Law Offices of Randolph R. Slaton, Honolulu, HI.

For Sport Kites, Inc. dba Wills Wing, ROB KELLS, cross-defendants: Leighton K.

Oshima, Patrick I. Wong, Wong Oshima & Kondo, Honolulu, [**2] HI.

Judges: Fong

Opinion by: Harold M. Fong

Opinion:

[*733] Order Granting Plaintiff’s Motion To Dismiss Non-Diverse Parties And Denying Defendants’ Motion To Dismiss For Lack Of Diversity Jurisdiction; Order Granting In Part And Denying In Part Defendants’ Motion For Summary Judgment

Introduction

This is a wrongful death action. On November 1, 1993, the court heard arguments on three motions: (1) defendant Kualoa Ranch, Inc.’s motion for summary judgment; (2) Kualoa Ranch’s motion to dismiss for lack of diversity jurisdiction; and (3) plaintiff’s motion to dismiss non-diverse parties to the complaint to preserve diversity jurisdiction.

Background

This action arises from the accidental death of David Wheelock (“David”). On July 14, 1991, David was paragliding at Kualoa Ranch. He was at a height of between 1,000 and 1,500 feet when the lines connecting him to the parachute-like canopy simultaneously broke, detaching him. He plunged to the earth and died.

Mary Rose Wheelock, David’s wife, brought this action n1 against Kualoa Ranch, owner of the premises where the activity occurred, Sport Aviation Hawaii, provider of the equipment, and Sport Kites, Inc., dba Wills Wing, and Rob Kells, an individual, manufacturers [**3] of the equipment.

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

n1 Mrs. Wheelock brought the action individually, as administratrix of her husband’s estate, and as guardian ad litem for their children.

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

Kualoa Ranch filed a motion to dismiss plaintiff’s complaint for lack of diversity jurisdiction. Plaintiff concedes that there is currently a lack of diversity: plaintiff is a citizen of California and defendant Sports Kites is a California corporation. On July 29, 1993, however, plaintiff reached a settlement agreement with Wills Wing and Rob Kells voluntarily dismissing all claims against them with prejudice. Plaintiff has thus filed a motion to dismiss Sport Kites, Inc., the sole non-diverse party to the complaint, to preserve diversity jurisdiction.

Kualoa Ranch has also filed a motion for summary judgment, joined by Sport Aviation Hawaii, on the grounds that plaintiff is barred from recovery because of an agreement and release of liability signed by David. On June 16, 1991, David signed the agreement as a precondition to use of the facilities and paragliding [**4] equipment. The agreement is a one-page, pre-printed, fill-in-the-blank form. Under its terms, David agreed to release and discharge Kualoa Ranch, Sport Ranch, and others from liability for injuries suffered while paragliding. n2

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

n2 The agreement, entitled an ‘Agreement and Release of Liability,” provides, in relevant part, that:

1. I hereby RELEASE AND DISCHARGE [defendants and others] . . . from any and all liability, claims, demands or causes of action that I may have for injuries and damages arising out of my participation in Ultralight activities, including but not limited to, losses CAUSED BY THE NEGLIGENCE OF THE RELEASED PARTIES.

2. I further agree that I WILL NOT SUE OR MAKE A CLAIM against the Released Parties for damages or other losses sustained as a result of my participation in Ultralight activities. I also agree to INDEMNIFY AND HOLD THE RELEASED PARTIES HARMLESS from all claims, judgments and costs, including attorney’s fees, incurred in connection with any action brought as a result of my participation in Ultralight activities.

3. I understand and acknowledge that Ultralight activities have inherent dangers that no amount of care, caution, instruction, or expertise can eliminate and I EXPRESSLY AND VOLUNTARILY ASSUME ALL RISK OF DEATH OR PERSONAL INJURY SUSTAINED WHILE PARTICIPATING IN ULTRALIGHT ACTIVITIES WHETHER OR NOT CAUSED BY THE NEGLIGENCE OF THE RELEASED PARTIES.

5. I hereby expressly recognize that this Agreement & Release of Liability is a contract pursuant to which I have released any and all claims against the Released Parties . . . .

I HAVE READ THIS AGREEMENT & RELEASE OF LIABILITY, FULLY UNDERSTAND

ITS CONTENTS AND MEANING, AND SIGN IT OF MY OWN FREE WILL.

David signed and dated it at the bottom, and initialed at nine pre-printed blank spaces, including one at each paragraph.

– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – – [**5]

DISCUSSION

I. KUALOA RANCH’S MOTION TO DISMISS COMPLAINT FOR LACK OF DIVERSITY JURISDICTION AND MARY ROSE WHEELOCK’S COUNTER-MOTION TO DISMISS NON-DIVERSE PARTIES.

The principal requirements of diversity jurisdiction are that the amount in controversy exceed $ 50,000 and that the parties be citizens of different states. 28 U.S.C. § 1332. There is no dispute as to the citizenship of the parties for purposes of diversity: plaintiff n3 and defendant Sport Kites, Inc. are citizens of California, and defendants Kualoa Ranch and Sport Aviation are citizens of Hawaii.

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

n3 The relevant citizenship of plaintiffs in a wrongful death action is that of the decedent. 28 U.S.C. § 1332(c)(2). It is undisputed that the domicile of David, the decedent, was in California.

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

The court will dismiss Sport Kites unless doing so will prejudice the remaining defendants. Rule 19 of the Federal Rules of Civil Procedure, which sets forth the rules for joinder [**6] of persons needed for a just adjudication, provides that in determining whether a party is indispensable, the court should consider “whether in equity and good conscience the action should proceed among the parties before it, or be dismissed.” A dispensable non-diverse party may be dismissed to perfect retroactively the district court’s original jurisdiction. Continental Airlines, Inc. v. Goodyear Tire & Rubber Co., 819 F.2d 1519, 1522-23 (9th Cir. 1987); Othman v. Globe Indem. Co., 759 F.2d 1458, 1463 (9th Cir. 1985); Inecon Agricorporation v. Tribal Farms, Inc., 656 F.2d 498, 500 (9th Cir. 1981). Refusal by the court to dismiss a dispensable, non-diverse party may constitute an abuse of discretion. Kerr v. Compagnie de Ultramar, 250 F.2d 860, 864 (2d Cir. 1958).

Defendants claim that they will be prejudiced because Sports Kites, Inc. designed and manufactured the allegedly defective paraglider, and unless they remain as defendants, they will not be part of the special verdict form submitted to the jury, pursuant to Hawaii Revised Statutes § 663-11 et seq., [**7] for determination of comparative fault. The court, however, may include a non-party on the special verdict form for apportionment of fault. See, e.g., In re Hawaii Federal Asbestos Cases, 960 F.2d 806 (9th Cir. 1992) (where the jury attributed a percentage of fault to non-parties). The statute does not require that fault be apportioned only among parties to the lawsuit.

Plaintiff has already settled with Rob Kells and Wills Wing, the parties destroying diversity, and will not be prejudiced by their dismissal. Defendants are not prejudiced because they may bring a third-party complaint against Sport Kites for indemnification, and their ability to defend plaintiff’s suit is unimpaired. The greatest source of potential prejudice is to plaintiff if the court dismisses for lack of diversity jurisdiction because the statute of limitations has expired on her claims.

II. KUALOA RANCH’S MOTION FOR SUMMARY JUDGMENT.

Plaintiff in a wrongful death action is subject to defenses which could be asserted against the decedent. See Saenz v. Whitewater Voyages, Inc., 226 Cal. App.3d 758, 763-64, 276 Cal. Rptr. 672 (Cal. App. 1990); [**8] Madison v. Superior Court, 203 Cal. App.3d 589, 250 Cal. Rptr. 299 (Cal. App. 1988).

Defendants thus raise the defense which they would have had against David—his agreement. The agreement provided, inter alia, that David agreed to release and discharge defendants Kualoa Ranch, Sport Aviation, and others from any liability, including “losses caused by the negligence of the released parties.”

The issue before the court on the motion for summary judgment is whether to give effect to the release of liability signed by David (and initialed at each paragraph).

A. David Wheelock Expressly Assumed the Risk of Death.

Defendants contend that signing the agreement constituted an assumption of risk by David. If the agreement is valid, they argue, it operates to relieve them of any legal [*735] duty to protect David from the injury-causing risk.

The agreement signed by David was a standardized, pre-printed form. It was an adhesion contract of the sort frequently offered to consumers of goods and services on a “take-it-or-leave-it” basis. In Leong v. Kaiser Found, Hospitals, 71 Haw. 240, 247-48, 788 P.2d 164 (1990), [**9] the Hawaii Supreme Court addressed the problem of such contracts:

An adhesion contract is a form contract created by the stronger of the contracting parties. It is offered on a “take this or nothing” basis. Consequently, the terms of the contract are imposed on the weaker party who has no choice but to conform. These terms unexpectedly or unconscionably limit the obligations of the drafting party. Because of these circumstances, some courts look past the wording of the contract and consider the entire transaction in order to effectuate the reasonable expectations of the parties. Ambiguities in the contract will be construed against the drafters and in plaintiff’s favor. (citing Robin v. Blue Cross Hosp. Serv., Inc., 637 S.W.2d 695, 697 (Mo. 1982).

While the agreement in the case at bar was an adhesion contract, it is not unconscionable. It is of a sort commonly used in recreational settings. See, e.g., Saenz v. Whitewater Voyages, Inc., 226 Cal. App.3d 758, 276 Cal. Rptr. 672 (Cal. App. 1990) (whitewater rafting); Westlye v. Look Sports, Inc., 17 Cal. App. 4th 1715, 22 Cal. Rptr.2d 781 (Cal. App. 1993) [**10] (skiing). Such agreements are generally held to be valid. Adhesion contracts are fully enforceable provided that they are not unconscionable and do not fall outside the reasonable expectations of the weaker or adhering party. See Graham v. Scissor-Tail, Inc., 28 Cal.3d 807, 820, 623 P.2d 165, 171 Cal. Rptr. 604, 612 (1981).

In Saenz, 226 Cal. App.3d at 758, the court barred recovery in a wrongful death action because plaintiff had signed a release expressly assuming the risk of the activity. Saenz had signed a “release and assumption of risk” agreement in order to participate in a three-day whitewater rafting trip on which he drowned. The court found that the release constituted an express assumption of risk and acted as a bar to a wrongful death action. Id. at 765.

Plaintiff argues that Saenz is distinguishable in the extent of the decedent Saenz’s knowledge of the assumed risk. He received extensive warning regarding the risk, extensive preparation, and several opportunities to avoid the particular rapids in which he drowned. [**11] n4 In contrast, David received some, less extensive explanation of the dangers of paragliding. n5 Although David did sign and initial the agreement providing that he assumed all risks, plaintiff argues that there is a question of fact as to David’s state of mind and the parties’ understanding.

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

n4 He was given several safety talks on emergency procedures, lessons, explanations of how to run the particular rapid, and a number of opportunities to opt out of riding the rapid in which he drowned. 276 Cal. Rptr. at 678.

n5 William Fulton, president of defendant Sport Aviation, avers that he warned David and informed him of the dangers of paragliding before he signed the release.

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

Plaintiff also argues that Saenz is distinguishable in terms of the nature of the risk assumed. The Saenz court referred to the risk of drowning in treacherous rapids as “inherent in whitewater rafting and apparent to anyone.” Id. at 766. According [**12] to plaintiff, while injury or death caused by treacherous winds, improper landings, or collision with an obstacle are “apparent” risks, the risk which befell David—the simultaneous breaking of all lines connecting him to the parachute—was not apparent. The Saenz court held that defendant’s assumption of all risks, known and unknown, made knowledge of the particular risk (death by drowning) unnecessary. Id. The court need not adopt so broad a holding. A risk must be a known risk for it to be properly assumed. Prosser & Keaton, Torts, § 68 at 480-81 (5th ed. 1984).

The court is satisfied that David knowingly assumed the risk at issue. The agreement provided that David “expressly [*736] and voluntarily assume[d] all risk of death or personal injury sustained while participating in ultralight activities whether or not caused by the negligence of the released parties.” (capitalization omitted). The risk which befell David was the risk of death.

David expressly assumed this risk. Plaintiff could characterize it in many different ways, but the fact is that David assumed the risk of death. Moreover, the apparent cause of David’s fall and subsequent death—equipment failure — [**13] is an obvious risk in paragliding and other “air” sports.

B. The Agreement Does Not Affect Plaintiff’s Gross Negligence and Strict Liability Claims.

1. Plaintiff’s Negligence Claims Are Barred.

David’s assumption of risk relieves defendants from any legal duty towards him, except insofar as the law nullifies such a waiver. Plaintiff is thus barred from bringing any negligence claims against defendants.

Hawaii courts permit a waiver of negligence claims. In Krohnert v. Yacht Systems Hawaii, Inc., 4 Haw. App. 190, 198, 664 P.2d 738 (Haw. App. 1983), the court declared that absent a public interest, “a party can contract to exempt himself for harm caused by his negligence.” (citing Restatement (Second) of Contracts and Williston on Contracts). Accord, Madison v. Superior Court, 203 Cal. App.3d 589, 599, 250 Cal. Rptr. 299, 305 (Cal. App. 1988). Although Hawaii courts have not specifically addressed the issue, courts in other jurisdictions have rejected the notion that the public interest is at stake in sport- or recreational-related waivers. See Saenz, supra. [**14] Plaintiff’s claims under negligence theories are effectively barred, and defendants are entitled to summary judgment vis-a-vis these claims.

2. Plaintiff’s Gross Negligence Claims Are Unaffected.

Plaintiff alleges gross negligence on defendant’s part in misrepresenting the safety of the paraglider. This is a distinct theory of liability from negligence. Negligence is the failure to use such care as a reasonably prudent and careful person would use under similar circumstances. Gross negligence, by contrast, is a failure to perform a manifest duty in reckless disregard of the consequences. “Gross negligence involves a risk substantially greater in amount than that which is necessary to make conduct negligent.” Bunting v. United States, 884 F.2d 1143, 1147 (9th Cir. 1989). The Restatement (Second) describes the difference between gross and ordinary negligence as follows: “[Gross negligence] differs from that form of negligence which consists of mere inadvertence, incompetence, unskillfulness, or a failure to take precautions to enable the actor to cope with a possible or probable future emergency.” Restatement (Second) of Torts § 500 cmt. g (1965). [**15]

Hawaii courts have not addressed the issue of whether a party can contract away liability for his own gross negligence. Because this is a diversity action, the court applies the substantive law of the forum state, Hawaii, and uses its best judgment in predicting how the Hawaii Supreme Court would decide this issue. See Takahashi v. Loomis Armored Car Serv., 625 F.2d 314, 316 (9th Cir. 1980). In Krohnert, 4 Haw. App. at 198, the court enunciated the principle that a party can only contract away liability for negligence in the absence of a public interest. The public interest is at stake when a party attempts to contract to exempt himself for harm caused by his gross negligence. See Stuart Rudnick, Inc. v. Jewelers Protection Servs., Ltd., 194 A.D.2d 317, 598 N.Y.S.2d 235, 236 (N.Y. App. Div. 1993); see also Saenz, 226 Cal. App.3d at 765 (“everything short of gross negligence is covered by the release . . . .”). The agreement in the instant case is therefore void against public policy to the extent that it attempts to relieve defendants of liability [**16] for their gross negligence. n6

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

n6 Alternatively, the court has grounds to find that the contract is ambiguous as to gross negligence. While the release and discharge agreement is a valid contract, it is an adhesion contract, and the court will interpret it accordingly. Adhesion contracts are construed liberally in favor of the adhering party and any ambiguities are resolved against the drafting party. See State Farm Mut. Auto. Ins. Co. v. Fermahin, 73 Haw. 552, 556, 836 P.2d 1074 (1993) (interpreting an insurance contract) (citation omitted). The court applies this rule only if there is a true ambiguity, and not merely because the parties disagree over its interpretation. Id. at 556. “Ambiguity exists ‘only when the contract taken as a whole, is reasonably subject to differing interpretation. A court must respect the plain terms of the policy and not create ambiguity where none exists.’” Id. at 556-57 (citations omitted). The release agreement, however, addresses only negligence and not gross negligence. The court will construe this as not barring a claim in gross negligence.

– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – – [**17]

[*737] 3. Plaintiff’s Strict Liability Claims.

The remaining question is whether the waiver of plaintiff’s strict products liability claims is effective. This is also an issue of first impression in Hawaii. See Takahashi v. Loomis Armored Car Serv., 625 F.2d at 316.

In Madison, 203 Cal. App.3d at 596, the California court of appeals held that the waiver constituted a “complete defense” to any claims in plaintiff’s actions. Accord, Saenz, 226 Cal. App.3d at 763. Neither court addressed the issue of strict products liability claims. More recently, however, a California appellate court held that an agreement relieving a product supplier from strict products liability is void. In Westlye v. Look Sports, Inc., 17 Cal. App. 4th 1715, 22 Cal. Rptr.2d 781 (Cal. App. 1993), the court held that a release agreement did not bar plaintiff who suffered skiing injuries from suing under a strict products liability theory in tort:

there is a strong policy against allowing product suppliers to disclaim liability for injuries caused [**18] by defects in products they place on the market. To allow product suppliers to achieve this prohibited result merely by substituting assumption of risk language for disclaimer language would too easily allow circumvention of these policies. In effect, such an agreement is nothing more than a disclaimer. Id. at 17-18.

The court rejected defendants’ argument that the express assumption of risk was good against the whole world. Id. at 1716 (“we have not discovered any authority for this proposition. The doctrine of express assumption is founded on express agreement.”). Westlye is well reasoned and solidly grounded in relevant policy considerations. The essence of the doctrine of strict liability, as enunciated by Justice Traynor in Escola v. Coca Cola Bottling Co., 24 Cal.2d 453, 461, 150 P.2d 436 (1944) (Traynor, J., concurring), is that a manufacturer who places a product on the market should be absolutely liable if it knows that the product will be used without inspection and is shown to have an injury-causing defect. See also Greenman v. Yuba Power Products, Inc., 59 Cal.2d 57, 62, 377 P.2d 897, 27 Cal. Rptr. 697 (1963) [**19] (applying the doctrine of strict liability as formulated by Traynor in Escola). The doctrine of strict liability is based not only on the public policy of discouraging the marketing and distribution of defective products, but also on the reasoning that a manufacturer is in a far better position than individual consumers to insure against the risk of injury and to distribute costs among consumers.

The court sees no reason to permit defendants to insulate themselves from strict liability by means of a release when they could not do so otherwise.

Insofar as the agreement signed by David attempts to relieve product suppliers of their responsibility for injuries caused by defective products, it is squarely at odds with the strict products liability doctrine. The very reason for the growth of products liability law was a perceived need to protect consumers from defective products and from attempts by product suppliers to disclaim responsibility for such defects by way of contractual provisions. See Seely v. White Motor Co., 63 Cal.2d 9, 16-17, 403 P.2d 145, 45 Cal. Rptr. 17 (1965); Vandermark v. Ford Motor Co., 61 Cal.2d 256, 391 P.2d 168, 37 Cal. Rptr. 896 (1964) [**20] (“since [the dealer] is strictly liable in tort, the fact that it restricted its contractual liability to [plaintiff] is immaterial.”); Greenman, 59 Cal.2d at 57, 377 P.2d at 897. With respect to claims for strict liability, David’s waiver is thus void as against public policy.

Hawaii courts have recognized that lessors of products who are in the business of leasing are subject to strict products liability. Stewart [*738] v. Budget Rent-A-Car Corp., 52 Haw. 71, 75, 470 P.2d 240 (1970). Accord, Price v. Shell Oil Co., 2 Cal.3d 245, 250, 466 P.2d 722, 725, 85 Cal. Rptr. 178, 181 (1970). Plaintiff’s claims in strict liability against Kualoa Ranch and Sport Aviation are not precluded by the release agreement.

C. The Agreement Is Not Ambiguous.

Plaintiff claims that the agreement is ambiguous because it includes the following paragraph:

6. It is understood that the purchase of this waiver does not constitute a contract of insurance but only a waiver of the contractual defenses that would otherwise be available to the Released Parties.

[**21]

Plaintiff claims that this paragraph indicates that David was purchasing a waiver of the contractual defenses available to defendants, and that the agreement itself would constitute a defense which is being waived. She argues that it is thus ambiguous as to whether such defenses are being waived.

Plaintiff points out correctly that courts regard attempts to contract away tort liability with skepticism, Gardner v. Downtown Porsche Audi, 180 Cal. App.3d 713, 716, 225 Cal. Rptr. 757 (Cal. App. 1986), and that an attempt to do so must be “clear, explicit, and comprehensible in each of its details.” Ferrell v. Southern Nevada Off-Road Enthusiasts, Ltd., 147 Cal. App.3d 309, 319, 195 Cal. Rptr. 90 (Cal. App. 1983). The court will resolve ambiguities in such contracts against the drafting party. See State Farm Mut. Auto. Ins. Co. v. Fermahin, 73 Haw. 552, 556, 836 P.2d 1074 (1992) (interpreting an insurance contract) (citation omitted).

Before an exculpatory clause may be enforced against a party, it must be established that he clearly and unequivocally [**22] agreed to the disclaimer with knowledge of its contents. Krohnert, 4 Haw. App. at 200, 664 P.2d at 744 (citations omitted). The court, however, only applies this rule in the event of a true ambiguity, and not merely because of a confusing passage. “Ambiguity exists ‘only when the contract taken as a whole, is reasonably subject to differing interpretation. A court must respect the plain terms of the policy and not create ambiguity where none exists.’” Id. at 556-57 (citations omitted). In this case, the contract, taken as a whole is unambiguous.

D. There Is No Genuine Issue of Material Fact as to Whether the Decedent Agreed to the Release with Knowledge of Its Contents.

Plaintiff contends that it is unclear whether David signed the agreement with clear and unequivocal knowledge of its terms. David is dead and thus unavailable to testify.

Defendants have come forward, however, with the affidavit of William Fulton, president of Sport Aviation, averring that he explained and warned David of the dangers at length before David signed the agreement. Moreover, there is no dispute that David signed the agreement and initialed it at the [**23] title and each paragraph. Plaintiff has not come forward with any evidence contradicting the Fulton affidavit and the signed agreement. There thus appears to be no genuine issue of material fact as to whether David signed the agreement with knowledge of its terms and of the dangers involved in paragliding.

CONCLUSION

For the reasons given, the court GRANTS plaintiff’s motion to dismiss non-diverse parties and DENIES defendants’ motion to dismiss for lack of diversity jurisdiction. Plaintiff has already settled with Sport Kites, Inc., dba Wills Wing and Rob Kells, the non-diverse defendants, and Sport Kites is not indispensable within the meaning of Rule 19 of the Federal Rules of Civil Procedure. n7

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

n7 The court understands that the remaining defendants will seek to prosecute a third-party complaint against Sport Kites as designers and manufacturers of the equipment. In the event that a third-party complaint may not be prosecuted, Sport Kites may still be included as non-parties on the special jury forms for assessment of its share of liability under Hawaii’s comparative negligence framework.

– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – – [**24]

For the reasons given, the court GRANTS in part and DENIES in part defendants ‘ [*739] motion for summary judgment. The release and discharge agreement signed by David Wheelock is valid and enforceable, and a plain reading of the agreement indicates that David expressly assumed the risk of death—the risk which befell him—and waived his right to any negligence claims against defendant. Plaintiff’s negligence claims are barred on this basis. The release and discharge is void, however, as it applies to plaintiff’s claims for gross negligence and strict liability, because the assumption of risk is ineffective vis-a-vis these claims.

IT IS SO ORDERED.

DATED: Honolulu, Hawaii, December 1, 1993

Harold M. Fong

UNITED STATES DISTRICT JUDGE

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Decisive Supreme Court Decision on the Validity of Releases in Oklahoma

Schmidt v. United States of America, 1996 OK 29; 912 P.2d 871; 1996 Okla. LEXIS 38 (Okla 1996)

Case arose as a certified question from the US District Court from Western Oklahoma.

This is a request by the Federal District Court in Western Oklahoma for clarification on a legal point. When a Federal court has to apply state law and there are no decisions for the Federal court to rely upon, it certifies the question to the state Supreme Court for clarification. That is how this case arose.

The plaintiff went for a trail ride at Artillery Hunt Riding Stables at Fort Sill, Oklahoma. Because the stable was owned by the Army that is the reason for the suit to be brought in Federal Court and why the defendant is the USA.

While on the ride, the “ride leader” allegedly rode up behind the plaintiff and frightened her horse causing the horse to throw her. The plaintiff sued saying that the US “(1) is liable vicariously for the ride leader’s negligence and (2) is culpable for its own negligence in selecting and keeping an unfit ride leader.” Both claims are based in negligence.

The Federal Court could not find case law to rely upon to issue an opinion on the defendant’s defense of release so it sent the case the Oklahoma Supreme Court.

The Oklahoma Supreme Court did not decide the case. The court only used the facts as supplemental information in making its decision concerning releases in Oklahoma.

The Oklahoma looked at the question in two parts:

1. Whether, under Oklahoma law, a contractual exculpatory clause for personal injury is valid and enforceable?

2. Whether, under Oklahoma law, the exculpatory provisions contained in the Rental Riding Agreement are valid and enforceable and operate to bar the plaintiff’s negligence and negligent entrustment claims?

The court responded this way: “

We respond to the first question in the affirmative. We answer the second with a qualifying affirmative by noting that it applies if the certifying court finds that three preconditions to the clause’s enforcement are met: (1) the exculpatory clause’s language clearly, definitely and unambiguously displays an intent to insulate the United States from the type of liability the plaintiff seeks to impose; (2) no disparity of bargaining power existed between the two parties to the agreement containing the clause at the time it was executed; and (3) its effect would not violate public policy.

We note that exculpatory clauses cannot relieve one from liability for fraud, willful injury, gross negligence or violation of the law.

Summary of the case

This decision is a well-written look at how Oklahoma and many other states look at releases. Generally, releases are upheld in Oklahoma. However, although releases are “generally enforceable” releases are distasteful. The test in Oklahoma on whether a release is valid is:

(1) their language must evidence a clear and unambiguous intent to exonerate the would-be defendant from liability for the sought-to-be-recovered damages;

(2) at the time the contract (containing the clause) was executed there must have been no vast difference in bargaining power between the parties; and

(3) enforcement of these clauses must never

(a) be injurious to public health, public morals or confidence in administration of the law or

(b) so undermine the security of individual rights vis-a-vis personal safety or private property as to violate public policy.

The court then described what clear and unambiguous intent was:

A contractual provision which one party claims excuses it from liability for in futuro tortious acts or omissions must clearly and cogently (1) demonstrate an intent to relieve that person from fault and (2) describe the nature and extent of damages from which that party seeks to be relieved. This is so not only when one assesses a party’s direct liability for negligence, but also when assaying whether the agreement’s terms embrace acts of an agent or servant of that party. In short, both the identity of the tortfeasor to be released and the nature of the wrongful act — for which liability is sought to be imposed — must have been foreseen by, and fall fairly within the contemplation of, the parties. The clause must also identify the type and extent of damages covered — including those to occur in futuro.

The court did differentiate between an exculpatory clause (release) which limits suits and clauses, which limit damages under Oklahoma law.

Bargaining power was described by the court in looking at releases as:

Courts consider two factors when called upon to ascertain the equality of the parties’ bargaining power, vis-a-vis each other, in the setting of a promissory risk assumption: (1) the importance of the subject matter to the physical or economic well-being of the party agreeing to the release and (2) the amount of free choice that party could have exercised when seeking alternate services.

The final issue, a release that violates public policy was described as:

While courts may declare void those portions of private contracts which contradict public policy, they must do so only with great caution. Two classes of exculpating agreements may be said to violate public policy: (1) those which — if enforced — patently would tend to injure public morals, public health or confidence in the administration of the law and (2) those which would destroy the security of individuals’ rights to personal safety or private property.

The court summed up its opinion on what a release must have under Oklahoma law as:

“any agreement having as its purpose the unequivocal exoneration of one party from negligent tort liability of another must identify both the putative tortfeasor and the category of recovery from which that actor would be relieved.

However, if any single requirement of the three requirements is not met by a release, then the release must fail.

So Now What?

You never find a decision that says this is what you must do to be legal. This decision from the Oklahoma Supreme Court explains step by step what an attorney must do to write a release.

 

Plaintiff: Elizabeth M. Schmidt

 

Defendant: United States of America (Artillery Hunt Riding Stables at Fort Sill, Oklahoma)

 

Plaintiff Claims: Negligence in the original Federal Action

 

Defendant Defenses: Release

 

Holding: Sent to the Federal Court for determination based on the decision here.

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Schmidt v. United States of America, 1996 OK 29; 912 P.2d 871; 1996 Okla. LEXIS 38 (Okla 1996)

Schmidt v. United States of America, 1996 OK 29; 912 P.2d 871; 1996 Okla. LEXIS 38 (Okla 1996)

ELIZABETH M. SCHMIDT, Plaintiff, v. UNITED STATES OF AMERICA, Defendant.

No. 85,545

SUPREME COURT OF OKLAHOMA

1996 OK 29; 912 P.2d 871; 1996 Okla. LEXIS 38

February 27, 1996, FILED

COUNSEL: Alan D. Rosenbaum, Lawton, OK, Reggie N. Whitten, Douglas A. Terry, MILLS & WHITTEN, Oklahoma City, OK, For Plaintiff.

Patrick M. Ryan, United States Attorney, Ronny D. Pyle, Assistant United States Attorney, Western District of Oklahoma, For Defendant.

JUDGES: KAUGER, V.C.J., HODGES, LAVENDER, SIMMS, HARGRAVE, OPALA, SUMMERS and WATT, JJ., concur; WILSON, C.J., concurs in part and dissents in part.

OPINION BY: OPALA

OPINION

[*872] CERTIFIED QUESTIONS FROM A UNITED STATES COURT

Opala, J.

The United States District Court for the Western [**2] District of Oklahoma [certifying court] certified the following questions pursuant to the Uniform Certification of Questions of Law Act, 20 O.S.1991 §§ 1601 et seq.:

“1. Whether, under Oklahoma law, a contractual exculpatory clause for personal injury is valid and enforceable?

2. Whether, under Oklahoma law, the exculpatory provisions contained in the Rental Riding Agreement are valid and enforceable and operate to bar the plaintiff’s negligence and negligent entrustment claims?”

We respond to the first question in the affirmative. We answer the second with a qualifying affirmative by noting that it applies if the certifying court finds that three preconditions to the clause’s enforcement are met: (1) the exculpatory clause’s language clearly, definitely and unambiguously displays an intent to insulate the United States from the type of liability the plaintiff seeks to impose; (2) no disparity of bargaining power existed between the two parties to the agreement containing the clause at the time it was executed; and (3) its effect would not violate public policy. We note that exculpatory clauses cannot relieve one from liability for fraud, [**3] willful injury, gross negligence or violation of the law. 1

1 See infra notes 8 and 15.

I

ANATOMY OF THE FEDERAL LITIGATION 2

2 The material accompanying the certified questions consists of the parties’ pleadings and motions filed in the certifying court. The factual recitals in the anatomy of the federal litigation were gleaned from this material and from the briefs submitted to this court.

Elizabeth M. Schmidt [plaintiff or Schmidt] went to the Artillery Hunt Riding Stables [Stables] at Fort Sill, Oklahoma 3 to engage in recreational horseback riding. Before participating in this activity she executed a Rental Riding Agreement [contract]. The contract contained the following clause [exculpatory clause or clause]:

“In consideration for being allowed to participate in Horse Rental, I hereby release [**4] the Artillery Hunt Center and its employees and/or ride leaders . . . and the United States Government from any liabilities or claims arising from my participation. I agree that I will never prosecute or in any way aid in prosecuting any demand, claim or suit against the United States Government for any loss, damage or injury to my person or property that may occur from any cause whatsoever as a result of taking part in this activity.” [Emphasis supplied.]

3 The Stables are admittedly an instrumentality of the U.S. Army.

Schmidt claims that, during the ride, a “ride leader” employed by the Stables negligently rode up behind her, frightened her horse and caused it to throw her to the ground, then fall on and injure her.

[*873] Schmidt brought a negligent tort complaint against the United States 4 alleging that the latter (1) is liable vicariously for the ride leader’s negligence and (2) is culpable for its own negligence in selecting and keeping an unfit ride leader. 5 By its summary [**5] judgment motion the United States interposed the exculpatory clause, by which it sought to defeat Schmidt’s claim.

4 Schmidt’s action invokes the Federal Tort Claims Act [FTCA], 28 U.S.C. §§ 2671 et seq. [HN1] By the FTCA’s terms the United States’ liability is measured according to the law of the state in which the wrongful act occurred. 28 U.S.C. § 2674.

5 Schmidt charges the United States with actual notice of the employee’s unfitness to lead the ride.

II

THE NATURE OF THIS COURT’S FUNCTION WHEN ANSWERING QUESTIONS FROM A FEDERAL COURT

[HN2] While the actionability of state-law claims identified in the submitted questions may be tested when answering the queries posed, it is not this court’s province to intrude (by the responses to be given) upon the federal court’s decision-making process. Because this case is not before us for decision,we refrain, as we must, from applying the declared state-law responses to the facts elicited or to be determined in the federal-court litigation (whether [**6] made by evidence adduced at trial or by acceptable probative substitutes, called “evidentiary materials”, for use in the summary adjudication process). 6 The task of analyzing the impact of today’s answers must be and hence is deferred to the certifying court.

6 Brown v. Ford, Okl., 905 P.2d 223, 226 n. 3 (1995); Bonner v. Oklahoma Rock Corp., Okl., 863 P.2d 1176, 1178 n. 3 (1993); Shebester v. Triple Crown Insurers, Okl., 826 P.2d 603, 606 n. 4 (1992).

III

THE PARAMETERS OF THE CLAUSE’S ENFORCEABILITY

[HN3] By entering into an exculpatory agreement of the type dealt with here 7 the promisor assumes the risks that are waived. 8 [*874] While these exculpatory promise based obligations are generally enforceable, 9 they are distasteful to the law. 10 For a validity test the exculpatory clause must pass a gauntlet of judicially-crafted hurdles: (1) their language must evidence a clear and unambiguous intent to exonerate the would-be defendant 11 from liability for the sought-to-be-recovered [**7] damages; 12 (2) at the time the contract (containing the clause) was executed there must have been no vast difference in bargaining power between the parties; 13 and (3) enforcement of these clauses must never (a) be injurious to public health, public morals or confidence in administration of the law or (b) so undermine the security of individual rights vis-a-vis personal safety or private property as to violate public policy. 14

7 For a discussion of the difference between a contract clause totally exempting one from culpability and one which merely limits the financial extent of that liability, see Elsken v. Network Multi-Family Sec. Corp., Okl., 838 P.2d 1007, 1008 (1992); Fretwell v. Protection Alarm Co., Okl., 764 P.2d 149, 151 (1988). In both of those cases a burglar alarm company sought to limit its liability for loss due to theft of customers’ property via a liquidated damages provision. The propriety of similar liability-limiting contract clauses is subject to an analysis grounded in contract law that lies outside the realm of tort jurisprudence. See MacNeil, Power of Contract and Agreed Remedies, 47 CORNELL L. Q. 495 (1962).

[**8]

8 [HN4] Express assumption of risk occurs in those cases where the plaintiff expressly contracts with another not to sue for any future injuries which may be caused by that person’s negligence. Thomas v. Holliday by and through Holliday, Okl., 764 P.2d 165, 168 n. 8 (1988); Murray v. Ramada Inns, Inc., 521 So. 2d 1123, 1129 (La. 1988); Anderson v. Ceccardi, 6 Ohio St. 3d 110, 451 N.E.2d 780, 783 (1983). The terms of RESTATEMENT (SECOND) OF TORTS § 496B (1965) provide:

[HN5] “A plaintiff who by contract or otherwise expressly agrees to accept a risk of harm arising from the defendant’s negligent or reckless conduct cannot recover for such harm, unless the agreement is invalid as contrary to public policy.” [Emphasis added.]

For a discussion of the jurisprudential requisites for determining whether an exculpatory contract violates public policy, see infra Part IIIC. See also in this connection V. SCHWARTZ, COMPARATIVE NEGLIGENCE § 9.1 at 154 (1974). [HN6] Express consent, which might also be called “waiver” or “release”, will usually bar recovery by the plaintiff unless there is a statute or established public policy against it. Murray, supra at 1129. The two statutory provisions cited by Schmidt are inapposite here. The terms of the first, [HN7] 15 O.S.1991 § 212, provide:

“All contracts which have for their object, directly or indirectly, to exempt anyone from responsibility for his own fraud, or willful injury to the person or property of another or violation of the law, whether willful or negligent, are against the public policy of the law.” [Emphasis added.]

This section forbids agreements relieving one from liability for fraud, willful injury or violation of the law. Its terms cannot be read to embrace contracts affecting liability for simple negligence. We assume — for want of contrary notice from the federal-court record — that in this case there is no fraudulent or willful conduct.

The terms of the second section, [HN8] 15 O.S.1991 § 212.1, provide:

“Any notice given by a business entity which provides services or facilities for profit to the general public and which seeks to exempt the business entity from liability for personal injury caused by or resulting from any acts of negligence on its part or on the part of its servants or employees, shall be deemed void as against public policy and wholly unenforceable.” [Emphasis added.]

[HN9] This section’s terms apply to promises imposed without the promisor’s adequate knowledge through explanation or sans consideration. That is not the case here because the exculpatory contract in suit clearly amounts to more than a posted notice.

[**9]

9 Wolf v. Ford, 335 Md. 525, 644 A.2d 522, 525 (1994); Colgan v. Agway, Inc., 150 Vt. 373, 553 A.2d 143, 145 (Vt. 1988); Harris v. Walker, 119 Ill. 2d 542, 116 Ill. Dec. 702, 519 N.E.2d 917, 919 (1988); Rawlings v. Layne & Bowler Pump Company, 93 Idaho 496, 465 P.2d 107, 110 (1970); Henry v. Mansfield Beauty Academy, Inc., 353 Mass. 507, 233 N.E.2d 22, 24 (Mass. 1968); Ciofalo v. Vic Tanney Gyms, Inc., 10 N.Y.2d 294, 177 N.E.2d 925, 926, 220 N.Y.S.2d 962 (1961).

10 Gulf C&S Ry. Co. v. Anderson, 120 Okla. 60, 250 P. 500, 502 (1926).

11 Colgan, supra note 9 at 145; Jones v. Dressel, 623 P.2d 370, 378 (Colo. 1981); Anderson, supra note 10 at 502.

12 Anderson, supra note 10 at 502.

13 Salt River Project Agr. v. Westinghouse Elec., 143 Ariz. 368, 694 P.2d 198, 213 (1985); Elsken, supra note 7 at 1010-1111.

14 Shepard v. Farmers Insurance Co., Okl., 678 P.2d 250, 251 (1984). See also Thomas, supra note 8 at 168 n. 7; Fisk v. Bullard, 205 Okla. 502, 239 P.2d 424, 427 (1951); Anderson, supra note 10 at 502. See also in this connection Harris, supra note 9 at 909; Salt River, supra note 13 at 213; Belger Cartage Serv., Inc., v. Holland Const. Co., 224 Kan. 320, 582 P.2d 1111, 1119 (1978); Ciofalo, supra note 9 at 926. 15

[**10] [HN10]

The clause will never avail to relieve a party from liability for intentional, willful or fraudulent acts or gross, wanton negligence. 15

15 Wolf supra note 9 at 528; Jones, supra note 11 at 376; Manhattan Co. v. Goldberg, 38 A.2d 172, 174 (D.C. 1944).

A. Clear and Unambiguous Description of Parties and Damages

[HN11] A contractual provision which one party claims excuses it from liability for in futuro tortious acts or omissions must clearly and cogently (1) demonstrate an intent to relieve that person from fault and (2) describe the nature and extent of damages from which that party seeks to be relieved. This is so not only when one assesses a party’s direct liability for negligence, but also when assaying whether the agreement’s terms embrace acts of an agent or servant of that party. In short, both the identity of the tortfeasor to be released and the nature of the wrongful act — for which liability is sought to be imposed — must have been foreseen by, and fall [**11] fairly within the contemplation of, the parties. 16 The clause must also identify the type and extent of damages covered — including those to occur in futuro. 17

16 Anderson, supra note 10 at 502.

17 Anderson, supra note 10 at 502.

B. Bargaining Power’s Parity Level

[HN12] Courts consider two factors when called upon to ascertain the equality of the parties’ bargaining power, vis-a-vis each other, in the setting of a promissory risk assumption: (1) the importance of the subject matter to the physical or economic well-being of the party agreeing to the release and (2) the amount of free choice that party could have exercised when seeking alternate services. 18

18 Goldberg, supra note 15 at 174-175. See Trumbower v. Sports Car Club of America, Inc., 428 F. Supp. 1113, 1117 (W.D. Okla. 1976).

[**12] [*875] C. The Element Whose Presence Makes the Exculpation Not Violative of Public Policy 19

19 [HN13] In the context of an exculpatory clause’s validity, “public policy” means that which inhibits anything injurious to the good of all. The term is applied here in a sense broader than that used when scrutinizing for conformity to “public policy” wrongful-termination claims pressed by discharged at-will employees. Cameron & Henderson v. Franks, 199 Okla. 143, 184 P.2d 965, 972 (1947). For cases that deal with claims by discharged at-will employees see Groce v. Foster, Okl., 880 P.2d 902, 904 (1994); Gilmore v. Enogex, Inc., Okl., 878 P.2d 360, 364 (1994); Burk v. K-Mart Corp., Okl., 770 P.2d 24, 28-29 (1989).

[HN14]

While courts may declare void those portions of private contracts which contradict public policy, 20 they must do so only with great caution. 21 Two classes of exculpating agreements may be said to violate public policy: (1) those which — if enforced — patently would tend to injure public [**13] morals, public health or confidence in the administration of the law and (2) those which would destroy the security of individuals’ rights to personal safety or private property. 22

20 Hargrave v. Canadian Valley Elec. Co-op., Okl., 792 P.2d 50, 59 (1990).

21 Shepard v. Farmers Insurance Co., Okl., 678 P.2d 250, 251 (1984); Johnston v. J.R. Watkins Co., 195 Okla. 341, 157 P.2d 755, 757 (1945); Camp v. Black Gold Petroleum Co., 189 Okla. 692, 119 P.2d 815, 817-818 (1941).

22 Shepard, supra note 21 at 251; Anderson v. Reed, 133 Okla. 23, 270 P. 854, 856 (1928). An example of an exculpatory clause injurious to public health is afforded by an agreement exonerating a common carrier from liability for negligence. See Pine Belt Lumber Co. v. Riggs, 80 Okla. 28, 193 P. 990, 996-997 (1920).

IV

SUMMARY

[HN15] National jurisprudence teaches that parties may contractually allocate the risk of future harm. The exercise of this power is conditional; any agreement having as its purpose [**14] the unequivocal exoneration of one party from negligent tort liability of another must identify both the putative tortfeasor and the category of recovery from which that actor would be relieved. The parties must have bargained for their exchange on a level playing field — the level to be measured by the seriousness of the contract’s subject matter and the options available to the person giving up the right to sue. If the clause is to pass the test’s muster, the assumed obligation cannot be deemed to have brought about a result perceived as harmful to the principles of “public policy”. 23

23 See supra note 19.

The validity of the Schmidt/Stables exculpatory clause in suit depends on the outcome of the fact-finding investigation to be conducted in the certifying court. 24 If — under the test we announce today — that court should determine that any single requirement for the clause’s enforceability has not been met, its decision could not uphold the contract and exonerate the United [**15] States.

24 Promise-based obligations of the type dealt with here are treated as the promisor’s risk assumption. See supra Part III. [HN16] The terms of ART. 23, § 6, OKL.CONST., provide in pertinent part:

“The defense of . . . assumption of risk shall, in all cases whatsoever, be a question of fact, and shall, at all times, be left to the jury.” [Emphasis added.]

[HN17] The terms of ART. 23, § 8, OKL.CONST., provide:

Any provision of a contract, express or implied, made by any person, by which any of the benefits of this constitution is sought to be waived, shall be null and void.” [Emphasis added.]

Today we merely define the parameters of an exculpating clause’s enforceability. Whether, as applied to this case, the provision presents a disputed law question or also a disputed fact question is to be decided by the certifying court.

CERTIFIED QUESTIONS ANSWERED.

KAUGER, V.C.J., HODGES, LAVENDER, SIMMS, HARGRAVE, OPALA, SUMMERS and WATT, JJ., concur;

WILSON, [**16] C.J., concurs in part and dissents in part.

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Hawaii’s deceptive trade practices act sends this case and release back to the trial court

Courbat v. Dahana Ranch, Inc., 111 Haw. 254; 141 P.3d 427; 2006 Haw. LEXIS 386

Court agrees that the issue of not finding out that you had to sign a waiver until the time of the activity might be a deceptive practice.

This is a very interesting case. A couple booked several activities through a third party booking agency. The activity in question was a horseback ride. The plaintiffs had booked the ride several months in advance of the ride and upon showing up, were handed a release.

Upon arriving at the defendants, the plaintiff read the waiver and signed it and passed it on to her husband. The husband signed it, testifying in his deposition that he relied on his wife to read such documents.

The record demonstrates that the Courbats were given adequate time and opportunity to fully review the waiver presented to them before they signed it and that both knew that by signing it; they were waiving legal rights in return for being allowed to participate in the ride.

Of note was a statement made by the court that no guest of the defendant had ever refused to sign the waiver.

During the ride, one horse kicked the plaintiff in the shin causing her an injury. She and her husband sued for negligence, gross negligence and for unfair and deceptive practices.

The defendant responded with the plaintiff assumed the risk, the release barred the plaintiff’s claims and the ranch had done nothing to bring it into the purview of the Hawaiian Deceptive Trade Practices Act. (HRS §§ 480-2 and 480-13)

The trial court had granted the defendant’s motion for summary judgment, and the decision was appealed.

Summary of the case

The court spent the most time on the issue that booking a ride several months in advance and not finding out that a waiver had to be signed on arrival was a deceptive practice.

…they assert that the Ranch’s practice of booking ride reservations through an activity company, receiving payment prior to the arrival of the guest, and then, upon the guest’s arrival at the Ranch, requiring the guest to sign a liability waiver as a precondition to horseback riding is an unfair and deceptive business practice to which the remedies of HRS ch. 480 apply.

The plaintiffs did not argue that the waiver was deceptive, only the fact that they were not informed that a waiver had to be signed. If the practice was found to be deceptive, then the waiver would be void.

The Courbats do not allege that the waiver itself is deceptive; rather, they urge that the deceptive practice at issue was the booking agent’s failure to inform them of the waiver requirement during the negotiation and execution of the underlying contract. Nevertheless, if any deceptive omission occurred with respect to the negotiation and execution of the original contract, the operation of HRS § 480-12, see supra note 1, would render both the original contract and the waiver, signed afterward, void.

After analyzing the fact the court found that there was an issue: “…whether a waiver requirement would be materially important in booking a horseback tour remains one for the trier of fact.

However, if the trier of fact (jury) finds that a failure to warn the plaintiff was not deceptive, then the waiver would be valid.

The court then looked at the wavier to determine if met Hawaiian law. The court found that if the plaintiff signed the wavier, then the plaintiff was bound by its terms. Waivers, exculpatory contracts, are valid if they are “knowingly and willingly made and free from fraud.”

Waivers can be voided for three reasons in Hawaii.

“‘exculpatory clauses will be held void if the agreement is

(1) violative of a statute,

(2) contrary to a substantial public interest, or

(3) gained through inequality of bargaining power.'”

The court then looked at what was a public interest and found a public interest had the following characteristics:

[1] It concerns a business of a type generally thought suitable for public regulation.

 [2] The party seeking exculpation is engaged in performing a service of great importance to the public, which is often [***30]  a matter of practical necessity for some members of the public.

 [3] The party holds himself out as willing to perform this service for any member of the public who seeks it, or at least for any member coming within certain established standards.

 [4] As a result of the essential nature of the service, in the economic setting of the transaction, the party invoking exculpation possesses a decisive ad-vantage of bargaining strength against any member of the public who seeks his services.

 [5] In exercising a superior bargaining power the party confronts the public with a standardized adhesion contract of exculpation and makes no provision whereby a purchaser may pay additional reasonable fees and obtain protection against negligence.

 [6] Finally, as a result of the transaction, the person or property of the purchaser is placed under the control of the seller of the service, subject to the risk of carelessness by the seller or his agents.

Recreational activities are unsuitable for public regulation; therefore, they do not violate the Hawaiian public interest definition that would void a release.

…while such waivers may be contracts of adhesion, in that they are presented on a “take-it-or-leave-it” basis, they are not unconscionable, but “are of a sort commonly used in recreational settings” and “are generally held to be valid.

Contracts of adhesion are ‘unenforceable if two conditions are present: (1) the contract is the result of coercive bargaining between parties of unequal bargaining strength; and (2) the contract unfairly limits the obligations and liabilities of, or otherwise unfairly advantages, the stronger party.

Because the plaintiffs had time to read and review the waiver, there was no coercion.

The court reviewed one final issue, waivers under Hawaiian law, like most other states do not stop claims for gross negligence or willful misconduct.

Consequently, the case was sent back for a jury to determine if the acts of the defendant, by and through its booking agency, acted deceptively or if the acts of the defendant were grossly negligent. If so the plaintiff would win the suit. If the acts of the defendant were not deceptive or the defendant was not grossly negligent the defendants would win at trial.

There was a dissent which found that the acts were not deceptive by law.

So Now What?

It is so easy to avoid most of the issues that were part of this appeal. One some signs up for a trip or activity, whether through you or a third party, they must be informed that they are going to sign a release.

It is that easy. Put it on the receipt, put it on the website, put it on the paperwork, in the brochure; put it everywhere. If you are in a state where the release is valid you will not go through the time, cost and expense of this type of litigation.

Every state has a deceptive trade practice’s statute. The statutes are enacted to protect consumers from dishonest businesses. The court did not examine the facts in light of an intentional act; just the practice alone was deceptive.

Don’t learn the act, just inform your guests.

 

Plaintiff: Lisa Courbat and Steven Courbat

 

Defendant: Dahana Ranch, Inc.

 

Plaintiff Claims: negligence, gross negligence, violation of the Hawaiian Deceptive Trade Practices statute.

 

Defendant Defenses: assumption of the risk, release, did not violate the deceptive practices act

 

Holding: reversed and sent back for trial

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Courbat v. Dahana Ranch, Inc., 111 Haw. 254; 141 P.3d 427; 2006 Haw. LEXIS 386

Courbat v. Dahana Ranch, Inc., 111 Haw. 254; 141 P.3d 427; 2006 Haw. LEXIS 386

Lisa Courbat and Steven Courbat, Plaintiffs-Appellants, vs. Dahana Ranch, Inc., Defendant-Appellee, and John Does 1-10, Jane Does 1-10, Doe Associations 1-10, Doe Partnerships 1-10, Doe Corporations 1-10, Doe Entities 1-10, and Doe Governmental Units 1-5, Defendants.

NO. 25151

SUPREME COURT OF HAWAI’I

111 Haw. 254; 141 P.3d 427; 2006 Haw. LEXIS 386

July 10, 2006, Decided

SUBSEQUENT HISTORY: Amended by, Reconsideration granted by, in part, Reconsideration denied by, in part Courbat v. Dahana Ranch, 2006 Haw. LEXIS 417 (Haw., Aug. 3, 2006)

PRIOR HISTORY: [***1] APPEAL FROM THE THIRD CIRCUIT COURT. CIV. NO. 01-1-0049.

COUNSEL: On the briefs:

Andrew S. Iwashita, for the plaintiffs-appellants Lisa Courbat and Steven Courbat.

Zale T. Okazaki, of Ayabe, Chong, Nishimoto, Sia and Nakamura, for the defendant-appellee Dahana Ranch, Inc.

JUDGES: MOON, C.J., LEVINSON AND NAKAYAMA, JJ., AND DUFFY, J., DISSENTING, WITH WHOM ACOBA, J. JOINS.

OPINION BY: LEVINSON

OPINION

[**429] [*256] OPINION OF THE COURT BY LEVINSON, J.

The plaintiffs-appellants Lisa Courbat and Steven Courbat [hereinafter, collectively, “the Courbats”] appeal from the May 13, 2002 judgment of the circuit court of the third circuit, the Honorable Riki May Amano presiding, entered pursuant to the circuit [*257] [**430] court’s April 26, 2002 grant of summary judgment in favor of the defendant-appellee Dahana Ranch, Inc. (the Ranch).

On appeal, the Courbats contend that the circuit court erred: (1) in concluding that Hawai’i Revised Statutes (HRS) § 480-2 et seq. (Supp. 1998) 1 do not apply to the Ranch’s business practices of booking prepaid tours and subsequently requiring liability waivers upon check-in; (2) by applying the rebuttable presumption set forth in HRS § 663B-2(a) [***2] (Supp. 1994) 2 in finding that [*258] [**431] Lisa’s injuries were not due to the negligence of the tour operator; (3) in finding that the Courbats sufficiently read over the waiver before signing it; and (4) in concluding that the waiver was valid as to their negligence claims.

1 HRS ch. 480 provided in relevant part:

§ 480-2 . . . . (a) [HN1] Unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce are unlawful.

(b) In construing this section, the courts and the office of consumer protection shall give due consideration to the rules, regulations, and decisions of the Federal Trade Commission and the federal courts interpreting section 5(a)(1) of the Federal Trade Commission Act (15 U.S.C. 45(a)(1)), as from time to time amended.

. . . .

§ 480-3 . . . . [HN2] This chapter shall be construed in accordance with judicial interpretations of similar federal antitrust statutes . . . .

. . . .

§ 480-12 . . . . [HN3] Any contract or agreement in violation of this chapter is void and is not enforceable at law or in equity.

§ 480-13 . . . . (b) [HN4] Any consumer who is injured by any unfair or deceptive act or practice forbidden or declared unlawful by section 480-2:

(1) May sue for damages sustained by the consumer, and, if the judgment is for the plaintiff, the plaintiff shall be awarded a sum not less than $ 1,000 or threefold damages by the plaintiff sustained, whichever sum is the greater, and reasonable attorneys’ fees together with the costs of suit; . . . and

(2) May bring proceedings to enjoin the unlawful practices, and if the decree is for the plaintiff, the plaintiff shall be awarded reasonable attorneys’ fees together with the cost of suit.

Effective June 28, 2002, HRS § 480-2 was amended in respects immaterial to the present matter. See 2002 Haw. Sess. L. Act 229, §§ 2 and 6 at 916-18. Effective May 2, 2001, June 28, 2002, and June 7, 2005, HRS § 480-13 was amended in respects immaterial to the present matter. See 2005 Haw. Sess. L. Act 108, §§ 3 and 5 at 265-66, 267; 2002 Haw. Sess. L. Act 229, §§ 3 and 6 at 917-18; 2001 Haw. Sess. L. Act 79, §§ 1 and 5 at 127-28.

[***3]

2 HRS ch. 663B, entitled “Equine activities” and enacted in 1994, see 1994 Haw. Sess. L. Act 229, §§ 1 and 2 at 591-92, provides in relevant part:

§ 663B-1 . . . . [HN5] As used in this [chapter], unless the context otherwise requires:

“Engages in an equine activity” means riding . . . or being a passenger upon an equine . . . .

. . . .

“Equine activity” means:

. . . .

(5) Rides, trips, hunts, or other equine activities of any type however informal or impromptu that are sponsored by an equine activity sponsor; and

. . . .

“Equine activity sponsor” means an individual, group, club, partnership, or corporation . . . which sponsors, organizes, or provides the facilities for, an equine activity. . . .

“Equine professional” means a person engaged for compensation in instructing a participant or renting to a participant an equine for the purpose of riding, driving, or being a passenger upon the equine, or in renting equipment or tack to a participant.

“Inherent risks of equine activities” means those dangers or conditions which are an integral part of equine activities, including, but not limited to:

(1) The propensity of an equine to behave in ways that may result in injury, harm, or death to persons on or around them;

(2) The unpredictability of an equine’s reaction to such things as sounds, sudden movement, and unfamiliar objects, persons, or other animals;

(3) Certain hazards such as surface and subsurface conditions;

(4) Collisions with other equines or objects; and

(5) The potential of a participant to act in a negligent manner that may contribute to injury to the participant or others, such as failing to maintain control over the animal or not acting within the participant’s ability.

“Participant” means any person, whether amateur or professional, who engages in an equine activity, whether or not a fee is paid to participate in the equine activity.

§ 663B-2 . . . . (a) [HN6] In any civil action for injury, loss, damage, or death of a participant, there shall be a presumption that the injury, loss, damage, or death was not caused by the negligence of an equine activity sponsor, equine professional, or their employees or agents, if the injury, loss, damage, or death was caused solely by the inherent risk and unpredictable nature of the equine. An injured person or their legal representative may rebut the presumption of no negligence by a preponderance of the evidence.

(b) Nothing in this section shall prevent or limit the liability of an equine activity sponsor, an equine professional, or their employees or agents if the equine activity sponsor, equine professional, or person:

. . . .

(2) Provided the equine and . . . failed to reasonably supervise the equine activities and such failure is a proximate cause of the injury

. . . . (Some brackets in original and some omitted.)

[***4] For the reasons discussed infra in section III.A, we vacate the circuit court’s May 13, 2002 judgment and remand for further proceedings consistent with this opinion.

I. BACKGROUND

The present matter arises out of personal injuries sustained by Lisa on February 1, 1999, while she and Steven were on a horseback riding tour on the Dahana Ranch on the Big Island of Hawai’i. The Courbats had booked the tour and prepaid the fee several months earlier through Island Incentives, Inc., an internet-based tour organizer. When they checked in at the Ranch, the Courbats were presented with a document to review and to sign which laid out the rules for the horseback tour and included a waiver “releas[ing] and hold[ing] harmless . . . [the] Ranch . . . from . . . injury to myself . . . resulting from my . . . being a spectator or participant or while engaged in any such activity in the event[-]related facilities” and stating that the undersigned “acknowledge[s] that there are significant elements of risk in any adventure, sport, or activity associated with horses.” 3 According to admissions by the Courbats in subsequent depositions, Lisa read over the waiver and, having [***5] no questions regarding the rules and regulations it contained, signed it before passing it to her husband to sign. Steven evidently did not read it, but recognized that it was “some kind of release of some sort” and signed it. In fact, no guest of the Ranch had ever refused to sign a waiver. Steven was familiar with the concept of such waivers, having participated with his wife in a snorkeling activity earlier during the vacation, at which time they both signed similar forms.

3 The rules and waiver stated in pertinent part:

In order for us to keep our ride from being a “Nose To Tail Trail Ride[,”] there are certain rules which must be followed for your safety and the horses’ mental well being. FAILURE TO FOLLOW THESE RULES WILL RESULT IN FORFEITURE OF YOUR RIDE WITH NO REFUND.

RULES AND REGULATIONS

FOLLOW RIDING INSTRUCTIONS & DIRECTIONS THROUGHOUT THE RIDE

. . . .

. PLEASE DO NOT RIDE AHEAD OF YOUR GUIDE UNLESS TOLD TO DO SO

. . . .

. DO NOT FOLLOW ONE ANOTHER

. . . .

WAIVER

I/We, the undersigned, hereby release and hold harmless the land owners, managers, operators (William P. Kalawaianui, Daniel H. Nakoa, Dahana Ranch and Nakoa Ranch), [t]he State of Hawai[]i and the Department of Hawaiian Home Lands and all other persons directly related to those listed above for the event listed herein[,] their successors, assigns and affiliates from loss or damage to property or injury to myself or any person . . . resulting from my . . . being a spectator or participant or while engaged in any such activity in the event[-] related facilities. I/We acknowledge that there are significant elements of risk in any adventure, sport or activity associated with horses.

I/WE HAVE READ AND UNDERSTOOD THE FOREGOING RULES, REGULATIONS AND WAIVER.

(Emphasis in original.)

[***6] The Ranch’s guide, Daniel Nakoa, briefed the Courbats on how to handle a horse and general rules of the trail, including the importance of not riding single-file or allowing the horses to bunch up end to end. Out on the ride, Lisa was injured when she rode up behind Nakoa’s horse while Nakoa was speaking with another guest who had approached Nakoa with a question. According to later statements by both Nakoa and Lisa, Lisa approached Nakoa’s horse from the rear while the three horses were in motion, and, when her horse neared Nakoa’s horse, Nakoa’s horse struck out at her horse, hitting Lisa in the left shin. Lisa described the incident in a deposition taken on November 3, 2001:

Q: At what point did you believe that you needed to pull the reins back as you were approaching the guide . . . ? . . .

[*259] [**432] [Lisa]: When I felt that the horse[] was getting too close to the horses above me.

Q: So it appeared to you that the nose end of the horse was getting too close to the butt end of the horse in front?

[Lisa]: To the horse in general. We were coming in. I was just trying to keep a certain space between myself and the horse.

Q: [T]hose two horses, the guide’s [***7] horse and the guest’s horse, they were to the left of your horse, is that correct, to the front left of you?

[Lisa]: Yes.

Q: You recall which hind leg of the horse kicked you? Was it the right or the left?

[Lisa]: It would be the right one.

Q: And that was a horse which was ridden by the guide or the guest?

[Lisa]: The guide.

Q: Just before the horse in front of you kicked you, were all of the horses still in motion? When I say “all the horses,” yours, the guide’s, and the guest that was riding parallel to the guide?

[Lisa]: Just before?

Q: Yes.

[Lisa]: Yes.

Q: Was there any conversation between you and the guide or the guest just before this kicking incident occurred?

[Lisa]: No.

Q: At the time this kicking incident occurred, w[ere] the guide and the guest still talking to each other?

[Lisa]: Yes.

Nakoa described the same incident in a January 9, 2002 deposition:

[Nakoa]: . . . Everybody was facing the gate, the second gate. . . . And I was in the back. And because I lots of times don’t want to be a part of the ride, I started riding to the right. And then a man came to talk to me and [***8] ask me about the horse.

. . . .

Q: On which side of your horse was he at the time?

[Nakoa]: He was on the left side of me.

Q: And were you still moving or were you stopped?

[Nakoa]: We were walking.

. . . .

Q: . . .[H]ad you passed Lisa along the way? . . . .

[Nakoa]: Because of the angle, she was off to my left.

Q: Still in front of you?

[Nakoa]: No. About the same.

. . . .

Q: And when is the next time you notice[] Lisa’s horse before the injury takes place?

. . . .

[Nakoa]: She was still on the left side of me.

Q: . . . [A]bout how far away do you estimate she was from your horse?

[Nakoa]: You know, 30 feet maybe. . . .

Q: And from that point on, . . . were you able to continually observe Lisa riding her horse until the time the injury occurred?

[Nakoa]: Yes. The man was on my left and I was talking to him.

. . . .

Q: . . . [W]hile [the guest is] asking you this question and you can see [Lisa], what is her horse doing as it’s approaching your horse?

[Nakoa]: No, I didn’t see her approaching my horse. That’s what I’m trying to tell you. She was on the [***9] left side of this man and me and we’re all going in that direction (indicating). She was trotting, and I was walking with this man. And I saw her. And then this man asked me something. And the next thing I knew, she was right in back of my horse telling me that my horse kicked her.

Nakoa later acknowledged in the deposition that, if he or his horse had been aware that Lisa’s horse was approaching from behind, his horse would not have been surprised and would not have struck out at her horse. As a result of the impact, Lisa suffered severe pain and swelling, but no broken bones, and [*260] [**433] since the incident has complained of ongoing pain and injury to her leg.

The Courbats filed suit on January 31, 2001, asserting claims of negligence and gross negligence that resulted in physical injury to Lisa and loss of consortium injuries to Steven. On November 21, 2001, they filed a first amended complaint, adding a claim of unfair and deceptive trade practices regarding the waiver they had signed the day of the ride.

On January 16, 2002, the Ranch filed a motion for summary judgment on the grounds: (1) that the Courbats had assumed the risk of the activity; (2) that the Courbats [***10] had waived their rights to sue the Ranch for negligence; and (3) that the Ranch had not committed any acts that brought it under the purview of HRS §§ 480-2 and 480-13, see supra note 1.

The Courbats filed a memorandum in opposition to the Ranch’s motion and a motion for partial summary judgment, urging the circuit court to rule, inter alia: (1) that the Ranch owed Lisa a duty to protect her from injury by Nakoa’s horse; and (2) that the rebuttable presumption of no negligence on a defendant’s part set forth in HRS § 663B-2, see supra note 2, was inapplicable.

The circuit court conducted a hearing on both motions on February 13, 2002 and, on April 26, 2002, entered an order granting the Ranch’s motion and denying the Courbats’ motion. On May 13, 2002, the circuit court entered a final judgment in favor of the Ranch and against the Courbats. On August 8, 2002, the Courbats filed a timely notice of appeal. 4

4 On May 10, 2002, the Ranch filed a notice of taxation of costs which, pursuant to Hawai’i Rules of Appellate Procedure (HRAP) Rule 4(a)(3), tolled the time for filing an appeal. An order as to taxation of costs was never entered, and so, pursuant to HRAP Rule 4(a)(3), the request was deemed denied 90 days later, on August 8, 2002. The Courbats’ appeal, filed prematurely on June 7, 2002, was therefore timely filed as of August 8, 2002, pursuant to HRAP Rule 4(a)(2) and (3).

[***11] II. STANDARDS OF REVIEW

A. Summary Judgment

We [HN7] review the circuit court’s grant or denial of summary judgment de novo . . . .

[S]ummary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. A fact is material if proof of that fact would have the effect of establishing or refuting one of the essential elements of a cause of action or defense asserted by the parties. The evidence must be viewed in the light most favorable to the non-moving party. In other words, we must view all of the evidence and the inferences drawn therefrom in the light most favorable to the party opposing the motion.

[Hawai’i Cmty. Fed. Credit Union v. Keka, 94 Hawai’i 213, 221, 11 P.3d 1, 9 (2000)] (citations and internal quotation marks omitted).

Querubin v. Thronas, 107 Hawai’i 48, 56, 109 P.3d 689, 697 (2005) (quoting Durette v. Aloha Plastic Recycling, Inc., 105 Hawai’i 490, 501, 100 P.3d 60, 71 (2004)) [***12] (internal citation omitted) (some brackets in original).

B. Interpretation Of Statutes

[HN8] The interpretation of a statute is a question of law reviewable de novo. State v. Arceo, 84 Hawai’i 1, 10, 928 P.2d 843, 852 (1996).

Furthermore, our statutory construction is guided by established rules:

[HN9] When construing a statute, our foremost obligation is to ascertain and give effect to the intention of the legislature, which is to be obtained primarily from the language contained in the statute itself. And we must read statutory language in the context of the entire statute and construe it in a manner consistent with its purpose.

When there is doubt, doubleness of meaning, or indistinctiveness or uncertainty [*261] [**434] of an expression used in a statute, an ambiguity exists. . . .

In construing an ambiguous statute, “[t]he meaning of the ambiguous words may be sought by examining the context, with which the ambiguous words, phrases, and sentences may be compared, in order to ascertain their true meaning.” HRS § 1-15(1) [(1993)]. Moreover, the courts may resort to extrinsic aids in determining legislative intent. [***13] One avenue is the use of legislative history as an interpretive tool.

Gray [v. Admin. Dir. of the Court], 84 Hawai’i [138,] 148, 931 P.2d [580,] 590 [(1997)] (footnote omitted).

State v. Koch, 107 Hawai’i 215, 220, 112 P.3d 69, 74 (2005) (quoting State v. Kaua, 102 Hawai’i 1, 7-8, 72 P.3d 473, 479-480 (2003)). [HN10] Absent an absurd or unjust result, see State v. Haugen, 104 Hawai’i 71, 77, 85 P.3d 178, 184 (2004), this court is bound to give effect to the plain meaning of unambiguous statutory language; we may only resort to the use of legislative history when interpreting an ambiguous statute. State v. Valdivia, 95 Hawai’i 465, 472, 24 P.3d 661, 668 (2001).

III. DISCUSSION

A. Inasmuch As The Presence Or Absence Of An Unfair Or Deceptive Trade Practice Is For The Trier Of Fact To Determine, The Circuit Court Erroneously Granted Summary Judgment In Favor Of The Ranch And Against The Courbats.

The Courbats do not dispute that they both signed the Ranch’s waiver form, see supra note 3, prior to their ride. Nor do they dispute that waivers are an accepted [***14] method by which businesses may limit their liability. Rather, they assert that the Ranch’s practice of booking ride reservations through an activity company, receiving payment prior to the arrival of the guest, and then, upon the guest’s arrival at the Ranch, requiring the guest to sign a liability waiver as a precondition to horseback riding is an unfair and deceptive business practice to which the remedies of HRS ch. 480 apply. The Courbats maintain that the practice of withholding the waiver had “the capacity or tendency to mislead” customers, thereby satisfying this court’s test for a deceptive trade practice as articulated in State ex rel. Bronster v. United States Steel Corp., 82 Hawai’i 32, 50, 919 P.2d 294, 312 (1996).

The Intermediate Court of Appeals held in Beerman v. Toro, 1 Haw. App. 111, 118, 615 P.2d 749, 754-55 (1980), that [HN11] the remedies afforded by HRS ch. 480 are not available for personal injury claims. See also Blowers v. Eli Lilly & Co., 100 F. Supp. 2d 1265, 1269-70 (D. Haw. 2000). The Courbats, however, assert that they are not invoking HRS ch. 480 for the purpose of establishing personal injury damages, [***15] but rather because the lack of notice as to the waiver requirement injured them economically, by way of the $ 116 cost of the tour, giving rise to a valid claim under HRS § 480-13, see supra note 1. As a deceptive trade practice, the Courbats maintain, the waiver is void under HRS § 480-12, see supra note 1.

1. The elements of a deceptive trade practice claim for recision of a contract

[HN12] To render the waiver void, the Courbats must establish that it is an unseverable part of a “contract or agreement in violation of [HRS ch. 480].” See HRS § 480-12, supra note 1. Furthermore, any “unfair or deceptive act[] or practice[] in the conduct of any trade or commerce” violates HRS § 480-2.

[HN13] “Deceptive” acts or practices violate HRS § 480-2, but HRS ch. 480 contains no statutory definition of “deceptive.” This court has described a deceptive practice as having “the capacity or tendency to mislead or deceive,” United States Steel Corp., 82 Hawaii at 50, 919 P.2d at 312, 313, but, beyond noting that federal [***16] cases have also defined deception “as an act causing, as a natural and probable result, a person to do that which he [or she] would not do otherwise,” Keka, 94 Hawai’i at 228, 11 P.3d at 16 (brackets in original) (quoting United States Steel Corp., 82 Hawaii at 51, 919 P.2d at 313 (citing Bockenstette v. Federal Trade Comm’n, 134 F.2d 369, 36 F.T.C. 1106 (10th Cir. 1943))), we have not articulated a more refined test.

[HN14] HRS § 480-3, see supra note 1, provides that HRS ch. 480 “shall be construed in accordance with judicial interpretations of similar federal antitrust statutes,” [*262] [**435] and HRS § 480-2(b) provides that “[i]n construing this section, the courts . . . shall give due consideration to the . . . decisions of . . . the federal courts interpreting . . . 15 U.S.C. [§ ] 45(a)(1)[(2000)],” 5 in recognition of the fact that HRS § 480-2 is “a virtual counterpart.” 6 Keka, 94 Hawai’i at 228, 11 P.3d at 16. The Federal Trade Commission (FTC), in In re Cliffdale Assocs., Inc., 103 F.T.C. 110, Trade Cas. (CCH) P22137 (1984), developed [***17] a three-part analytical test for “deception,” 7 which the federal courts have thereafter extensively adopted, see FTC v. Verity Int’l, Ltd., 443 F.3d 48, 63 (2d. Cir. 2006); FTC v. Tashman, 318 F.3d 1273, 1277 (11th Cir. 2003); FTC v. Pantron I Corp., 33 F.3d 1088, 1095 (9th Cir. 1994); FTC v. World Travel Vacation Brokers, Inc., 861 F.2d 1020, 1029 (7th Cir. 1988). Under the Cliffdale Assocs. test, a deceptive act or practice is “(1) a representation, omission, or practice[] that (2) is likely to mislead consumers acting reasonably under the circumstances [where] (3)[] the representation, omission, or practice is material.” Verity Int’l, 443 F.3d at 63. A representation, omission, or practice is considered “material” if it involves “‘information that is important to consumers and, hence, likely to affect their choice of, or conduct regarding, a product.'” Novartis Corp. v. FTC, 343 U.S. App. D.C. 111, 223 F.3d 783, 786 (D.C. Cir. 2000) (quoting Cliffdale Assocs., 103 F.T.C. at 165); see also Kraft, Inc. v. FTC, 970 F.2d 311, 322 (7th Cir. 1992); [***18] FTC v. Crescent Publ’g Group, Inc., 129 F. Supp. 2d 311, 321 (S.D.N.Y. 2001); FTC v. Five-Star Auto Club, Inc., 97 F. Supp. 2d 502, 529 (S.D.N.Y. 2000); FTC v. Sabal, 32 F. Supp. 2d 1004, 1007 (N.D. Ill. 1998). Moreover, the Cliffdale Assocs. test is an objective one, turning on whether the act or omission “is likely to mislead consumers,” Verity Int’l, 443 F.3d at 63, as to information “important to consumers,” Novartis Corp., 223 F.3d at 786, in making a decision regarding the product or service. 8

5 15 U.S.C. § 45(a)(1) provides that ” [HN15] [u]nfair methods of competition in or affecting commerce, and unfair or deceptive acts or practices in or affecting commerce, are hereby declared unlawful.”

6 Hawai’i courts have long recognized, therefore, that federal interpretations of 15 U.S.C. § 45(a)(1) guide us in construing HRS § 480-2 “in light of conditions in Hawai’i.” Ai v. Frank Huff Agency, 61 Haw. 607, 613 n.11, 607 P.2d 1304, 1309 n.11 (1980); see also Island Tobacco Co. v. R.J. Reynolds Tobacco Co., 63 Haw. 289, 299, 627 P.2d 260, 268 (1981) overruled on other grounds by Robert’s Hawaii School Bus, Inc. v. Laupahoehoe Transp. Co., Inc., 91 Hawai’i 224, 982 P.2d 853 (1999); Rosa v. Johnston, 3 Haw. App. 420, 426, 651 P.2d 1228, 1233-34 (1982).

[***19]

7 See Cliffdale Assocs., 103 F.T.C. at 164-65 (characterizing the new standard as a refinement of the “tendency or capacity to deceive” test used by the FTC to that point and pronouncing the old test “circular and therefore inadequate to provide guidance”).

8 [HN16] While federal courts have not expressly categorized the test as objective, the FTC, in Cliffdale Assocs., commented that “[t]he requirement that an act or practice be considered from the perspective of a consumer acting reasonably in the circumstances is not new. . . . [The FTC] has long recognized that the law should not be applied in such a way as to find that honest representations are deceptive simply because they are misunderstood by a few. . . . [A]n advertisement would not be considered deceptive merely because it could be unreasonably misunderstood by an insignificant and unrepresentative segment of the class of persons [to] whom the representation is addressed.” 103 F.T.C. at 165 (footnotes and internal quotation signals omitted).

[HN17] Given our obligation under HRS §§ 480-3 [***20] and 480-2(b) to apply federal authority as a guide in interpreting HRS ch. 480, we hereby adopt the three-prong Cliffdale Assocs. test in determining when a trade practice is deceptive. 9

9 Other states have already adopted the Cliffdale Assocs. test. See, e.g., Luskin’s, Inc. v. Consumer Prot. Div., 353 Md. 335, 726 A.2d 702, 713 (Md. 1999); Carter v. Gugliuzzi, 168 Vt. 48, 716 A.2d 17, 23 (Vt. 1998). Our adoption of the Cliffdale Assocs. test does not change the existing rule that, in order to establish a violation of HRS § 480-2, the plaintiff need not establish an intent to deceive on the part of the defendant, World Travel Vacation Brokers, 861 F.2d at 1029; Five-Star Auto Club, 97 F. Supp. at 526, nor any actual deceit, United States Steel Corp., 82 Hawai’i at 51, 919 P.2d at 313.

2. Under The Cliffdale Assocs. Objective Consumer Test, The Determination [***21] Of A Deceptive Omission Is One For The Trier Of Fact, Thereby Rendering Summary Judgment Inappropriate.

The Courbats do not allege that the waiver itself is deceptive; rather, they urge [*263] [**436] that the deceptive practice at issue was the booking agent’s failure to inform them of the waiver requirement during the negotiation and execution of the underlying contract. 10 Nevertheless, if any deceptive omission occurred with respect to the negotiation and execution of the original contract, the operation of HRS § 480-12, see supra note 1, would render both the original contract and the waiver, signed afterward, void. 11 Thus, the waiver’s survival depends on the trier of fact’s determination as to whether the omission of the waiver requirement during Island Incentives, Inc.’s booking process was deceptive and therefore in violation of HRS § 480-2.

10 It is undisputed that Island Incentives, Inc. was acting as the Ranch’s agent in this matter, and “we note that [HN18] an owner is responsible for the representations of his agent made within the scope of his agent’s selling authority.” Au v. Au, 63 Haw. 210, 215, 626 P.2d 173, 178 (1981) (citing Negyessy v. Strong, 136 Vt. 193, 388 A.2d 383, 385 (Vt. 1978)).

[***22]

11 If the waiver were severable from the underlying contract, it could survive despite a determination that the original contract was void. See Ai v. Frank Huff Agency, 61 Haw. 607, 619, 607 P.2d 1304, 1312 (1980) [HN19] (“The wording on HRS § 480-12 might . . . appear to suggest that any contract containing an illegal provision . . . should be held unenforceable in its entirety. . . . [U]nder ordinary contract law, however, . . . a partially legal contract may be upheld if the illegal portion is severable from the part which is legal.”). However, “the general rule is that severance of an illegal provision is warranted and the lawful portion . . . enforceable when the illegal provision is not central to the parties’ agreement.” Beneficial Hawaii, Inc. v. Kida, 96 Hawai’i 289, 311, 30 P.3d 895, 917 (2001). The underlying contract at issue is the sum of the parties’ agreement; the waiver would be considered an addendum to it. Therefore, the waiver is not severable and must stand or fall with the underlying contract.

[HN20] The application [***23] of an objective “reasonable person” standard, of which the Cliffdale Assocs. test is an example, is ordinarily for the trier of fact, rendering summary judgment “often inappropriate.” Amfac, Inc. v. Waikiki Beachcomber Inv. Co., 74 Haw. 85, 107, 839 P.2d 10, 24 (1992), cited in Casumpang v. ILWU Local 142, 108 Hawai’i 411, 425, 121 P.3d 391, 405 (2005); Arquero v. Hilton Hawaiian Village LLC, 104 Hawai’i 423, 433, 91 P.3d 505, 515 (2004). “Inasmuch as the term ‘reasonableness’ is subject to differing interpretations . . ., it is inherently ambiguous. Where ambiguity exists, summary judgment is usually inappropriate because ‘the determination of someone’s state of mind usually entails the drawing of factual inferences as to which reasonable [minds] might differ.'” Amfac, Inc., 74 Haw. at 107, 839 P.2d at 24 (quoting Bishop Trust Co. v. Cent. Union Church, 3 Haw. App. 624, 628-29, 656 P.2d 1353, 1356 (1983)). Reasonableness can only constitute a question of law suitable for summary judgment “‘when the facts are undisputed and not fairly susceptible of divergent inferences’ because ‘[w]here, upon [***24] all the evidence, but one inference may reasonably be drawn, there is no issue for the jury.'” Id. at 108, 839 P.2d at 24 (quoting Broad & Branford Place Corp. v. J.J. Hockenjos Co., 132 N.J.L. 229, 39 A.2d 80, 82 (N.J. 1944) (brackets in original)). “‘[A] question of interpretation is not left to the trier of fact where evidence is so clear that no reasonable person would determine the issue in any way but one.'” Id. (quoting Restatement (Second) of Contracts § 212 cmt. e (1981) (brackets in original)). See also Restatement (Second) of Contracts § 212(2) (1981 and Supp. 2005) (“A question of interpretation of an integrated agreement is to be determined by the trier of fact if it depends on the credibility of extrinsic evidence or on a choice among reasonable inferences to be drawn from extrinsic evidence .”) (Emphasis added). There is no genuine issue of material fact regarding the failure to disclose the waiver requirement during negotiation of the original tour contract, but we cannot say that, applying the Cliffdale Assocs. test, reasonable minds could draw [***25] only one inference as to the materiality of that omission to reasonable consumers contemplating the transaction. Therefore, the question whether a waiver requirement would be materially important in booking a horseback tour remains one for the trier of fact.

Because a genuine issue of material fact, resolvable only by the trier of fact, remains in dispute, the grant of summary judgment on the HRS ch. 480 claim was erroneous. We therefore vacate the circuit court’s May [*264] [**437] 13, 2002 judgment and remand for further proceedings consistent with this opinion.

B. The Consequences, On Remand, Of The Determination By The Trier Of Fact As To Whether Nondisclosure Of The Waiver Requirement Was A Deceptive Trade Practice

If, on remand, the trier of fact determines that the nondisclosure of the waiver was a deceptive trade practice, rendering the waiver void, then the Courbats’ negligence claims proceed free of the waiver defense. Nevertheless, for the reasons set forth below and for purposes of any subsequent trial on the Courbats’ negligence claims, we hold that HRS ch. 663B, entitled “Equine activities,” see supra note 2, setting forth a rebuttable presumption of non-negligence [***26] on the part of the tour operator, does not apply to the present matter.

Conversely, if, on remand, the trier of fact determines that the nondisclosure of the waiver was not deceptive, then the Courbats validly waived their negligence claims.

1. The Statutory Presumption Of Non-Negligence For Equine-Related Injuries Set Forth In HRS Ch. 663B Does Not Apply To The Courbats’ Claims.

If the trier of fact determines that the failure to inform the Courbats of the waiver requirement was a deceptive trade practice, then the negligence waiver, along with the underlying contract, will be rendered void, and the Courbats’ negligence claims will be revived. In order to provide guidance on remand, therefore, we hold that it was error for the circuit court in the present matter to apply HRS § 663B-2(a), see supra note 2, which establishes a rebuttable presumption in favor of horseback tour operators that any injury “caused solely by the inherent risk and unpredictable nature of the equine” is not due to the negligence of the tour operator.

HRS § 663B-2(b) provides in relevant part that “[n]othing in [***27] this section shall prevent or limit the liability of an equine activity sponsor . . . if the equine activity sponsor, equine professional, or person: . . . (2) [p]rovided the equine and . . . failed to reasonably supervise the equine activities and such failure is a proximate cause of the injury.” The substance of Lisa’s claim revolves around her assertion that Nakoa failed to monitor her approach toward his horse while he was engaged in conversation with another guest; in other words, Lisa claims that Nakoa “failed to reasonably supervise the equine activities” that were the “proximate cause of [her] injury.” Therefore, we hold that, if Lisa is correct, the presumption of non-negligence set forth in HRS § 663B-2(a) would not apply to the Courbats’ claims.

2. If The Trier Of Fact Determines That The Nondisclosure Of The Waiver Was Not A Deceptive Trade Practice, Then The Courbats Validly Waived Their Negligence Claims.

a. The waiver was validly executed.

Citing Krohnert v. Yacht Sys. of Hawai’i, 4 Haw. App. 190, 201, 664 P.2d 738, 745 (1983), the Courbats assert that, because they manifested no clear [***28] and unequivocal acceptance of the terms of the waiver, the waiver cannot be enforced against them. However, pursuant to the following analysis, we hold that, if the trier of fact finds that the failure to inform the Courbats of the waiver requirement was not a deceptive trade practice, then the waiver, in all other respects, was valid.

[HN21] “The general rule of contract law is that one who assents to a contract is bound by it and cannot complain that he has not read it or did not know what it contained.” Leong v. Kaiser Found. Hosp., 71 Haw. 240, 245, 788 P.2d 164, 168 (1990); see also Joaquin v. Joaquin, 5 Haw. App. 435, 443, 698 P.2d 298, 304 (1985); In re Chung, 43 B.R. 368, 369 (Bankr. D. Haw. 1984); In re Kealoha, 2 B.R. 201, 209 (Bankr. D. Haw. 1980). Furthermore, “‘[p]arties are permitted to make exculpatory contracts so long as they are knowingly and willingly made and free from fraud. No public policy exists to prevent such contracts.'” Fujimoto v. Au, 95 Hawai’i 116, 156, 19 P.3d 699, 739 (2001) (some brackets omitted) (quoting Gen. Bargain Ctr. v. Am. Alarm Co., Inc., 430 N.E.2d 407, 411-12 [*265] [**438] (Ind. Ct. App. 1982)). [***29] “[S]uch bargains are not favored, however, and, if possible, bargains are construed not to confer this immunity.” Fujimoto, 95 Hawai’i at 155, 19 P.3d at 738. Therefore, as a general rule, “‘[e]xculpatory clauses will be held void if the agreement is (1) violative of a statute, (2) contrary to a substantial public interest, or (3) gained through inequality of bargaining power.'” 95 Hawaii at 156, 19 P.3d at 739 (quoting Andrews v. Fitzgerald, 823 F. Supp. 356, 378 (M.D.N.C. 1993)).

The Courbats have not alleged that any of the terms of the waiver, or the use of a waiver by the Ranch, violates a statute; on the contrary, the Courbats concede that waivers are an acceptable method by which tour operators may seek to limit their liability in response to rising insurance and litigation costs.

In Krohnert, the ICA defined the public interest

as involving some or all of the following characteristics:

[1] It concerns a business of a type generally thought suitable for public regulation.

[2] The party seeking exculpation is engaged in performing a service of great importance to the public, which is often [***30] a matter of practical necessity for some members of the public.

[3] The party holds himself out as willing to perform this service for any member of the public who seeks it, or at least for any member coming within certain established standards.

[4] As a result of the essential nature of the service, in the economic setting of the transaction, the party invoking exculpation possesses a decisive advantage of bargaining strength against any member of the public who seeks his services.

[5] In exercising a superior bargaining power the party confronts the public with a standardized adhesion contract of exculpation and makes no provision whereby a purchaser may pay additional reasonable fees and obtain protection against negligence.

[6] Finally, as a result of the transaction, the person or property of the purchaser is placed under the control of the seller of the service, subject to the risk of carelessness by the seller or his agents.

4 Haw. App at 199, 664 P.2d at 744 (finding under this test that the exculpatory clause contained in a contract for marine surveying was permissible) (brackets omitted) (quoting Lynch v. Santa Fe Nat’l Bank, 97 N.M. 554, 627 P.2d 1247, 1251-52 (N.M. Ct. App. 1981) [***31] (holding that services of escrow agents in New Mexico were not in the nature of a public service so as to render an exculpatory clause unenforceable) (quoting Tunkl v. Regents of Univ. of Cal., 60 Cal. 2d 92, 383 P.2d 441, 445-46, 32 Cal. Rptr. 33 (Cal. Ct. App. 1963) (declaring invalid as against the public interest an exculpatory clause for future negligence required for admission to a public research hospital))); see also 15 Corbin on Contracts § 85.18 (2003 & Supp. 2005) (summarizing a similar test commonly used by courts and noting that courts tend to enforce exculpatory clauses for recreational activities under the test). 12 Entities that have been found to fall under the public interest doctrine, rendering exculpatory clauses void, include common carriers, see Adams Express Co. v. Croninger, 226 U.S. 491, 509, 33 S. Ct. 148, 57 L. Ed. 314 (1913); Shippers Nat’l Freight Claim Council, Inc. v. Interstate Commerce Comm’n, 712 F.2d 740, 746 (2d Cir. 1983); Clairol, Inc. v. Moore-McCormack Lines, Inc., 79 A.D.2d 297, 309-10, 436 N.Y.S.2d 279 (N.Y. App. Div. 1981), and hospitals, see Tunkl, 383 P.2d at 447; Smith v. Hosp. Auth. of Walker, Dade & Catoosa Counties, 160 Ga. App. 387, 287 S.E.2d 99, [*266] [**439] 101 (Ga. Ct. App. 1981); [***32] Belshaw v. Feinstein, 258 Cal. App. 2d 711, 65 Cal. Rptr. 788, 798 (Cal. Ct. App. 1968).

12 Courts have upheld exculpatory clauses relating to car racing, see Cadek v. Great Lakes Dragaway, Inc., 843 F. Supp. 420 (N.D. Ill. 1994); Barbazza v. Int’l Motor Sports Ass’n, 245 Ga. App. 790, 538 S.E.2d 859 (Ga. Ct. App. 2000), snow skiing, see Chauvlier v. Booth Creek Ski Holdings, Inc., 109 Wn. App. 334, 35 P.3d 383 (Wash. Ct. App. 2001), skydiving, see Scrivener v. Sky’s The Limit, Inc., 68 F. Supp. 2d 277 (S.D.N.Y. 1999), and horseback riding, see Street v. Darwin Ranch, Inc., 75 F. Supp. 2d 1296, 1299 (D. Wyo. 1999) (finding that “recreational trail rides are neither of great importance to the public, nor a practical necessity to any member of the public”).

Applying these factors to the present matter, we determine that the public interest here is not at stake: recreational activity tours are not generally [***33] suitable to public regulation, in the manner of common carriers, nor of great importance to the public, nor of an essential nature, in the manner of medical care, such that the provider’s bargaining power is greatly enhanced over any member of the public seeking their services.

Finally, as the United States District Court for the District of Hawai’i noted, in considering negligence waivers in the context of recreational activity, while such waivers may be contracts of adhesion, in that they are presented on a “take-it-or-leave-it” basis, they are not unconscionable, but “are of a sort commonly used in recreational settings” and “are generally held to be valid.” Wheelock v. Sport Kites, Inc., 839 F. Supp. 730, 736 (D. Haw. 1993). [HN22] “[C]ontracts [of adhesion] are ‘unenforceable if two conditions are present: (1) the contract is the result of coercive bargaining between parties of unequal bargaining strength; and (2) the contract unfairly limits the obligations and liabilities of, or otherwise unfairly advantages, the stronger party.'” Fujimoto, 95 Hawai’i at 156, 19 P.3d at 739 (quoting Brown v. KFC Nat’l Mgmt. Co., 82 Hawai’i 226, 247, 921 P.2d 146, 167 (1996)); [***34] see also Wheelock, 839 F. Supp. at 735 (“[A]dhesion contracts are fully enforceable provided that they are not unconscionable and do not fall outside the reasonable expectations of the weaker or adhering party.”). Unequal bargaining strength “involves the absence of alternatives; specifically whether the plaintiffs were ‘free to use or not to use’ [the] defendant’s . . . services.” Krohnert, 4 Haw. App at 199, 664 P.2d at 744 (quoting Lynch, 627 P.2d at 1250). These conditions are generally not germane in the recreational waiver context. In the context of a recreational sport or adventure activity, freely undertaken for pleasure, “coercive bargaining” and “an absence of alternatives” are terms that hold little meaning.

In the present matter, Lisa read through and responded to queries contained in the waiver form and had no further questions or concerns regarding the contents before she signed it. Steven conceded that he routinely relied on his wife to review documents before signing them and that he knew he was waiving rights when he signed the form. The record demonstrates that the Courbats were given adequate time and opportunity [***35] to fully review the waiver presented to them before they signed it and that both knew that by signing it they were waiving legal rights in return for being allowed to participate in the ride. In short, there is no evidence of coercion. By signing the waiver form, they demonstrated that they agreed to its terms, and by reading it, or, in Steven’s case, in relying on the advice of his wife, demonstrated knowledge of its contents. Moreover, they had signed similar waivers that week for another activity and were familiar with what they represented. Accordingly, we hold that, if the trier of fact determines that the nondisclosure of the waiver was not a deceptive trade practice, the Courbats’ waiver was valid.

b. The scope of the Courbats’ waiver does not extend beyond negligence claims.

The language of the waiver, see supra note 3, releases the Ranch and its agents and holds it harmless “from loss or damage to property or injury to [the undersigned] . . . resulting from [the undersigned] . . . being a spectator or participant or while engaged in any such activity in the event[-]related facilities.” However, because [HN23] “‘[e]xculpatory provisions are not [***36] favored by the law and are strictly construed against parties relying on them,'” the effect of the broad exculpatory language contained in the Ranch’s waiver should be construed to limit the waiver’s scope to simple negligence claims; it does not protect the Ranch against its own gross negligence or willful misconduct. Fujimoto, 95 Hawai’i at 156, 19 P.3d at 739 (quoting Andrews, 823 F. Supp. at 378); see also Wheelock, 839 F. Supp. at 736 (interpreting the reasoning in Krohnert to conclude that to allow an exculpatory clause to extend to gross negligence would violate [*267] [**440] the public interest, rendering the clause void).

IV. CONCLUSION

In light of the foregoing analysis, we vacate the circuit court’s May 13, 2002 judgment in favor of the Ranch and against the Courbats and remand for further proceedings consistent with this opinion.

DISSENT BY: DUFFY

DISSENT

DISSENTING OPINION BY DUFFY, J., IN WHICH ACOBA, J., JOINS

I respectfully dissent. In my view, no reasonable person would find that the recreational tour operator’s failure to disclose the waiver requirement of Dahana Ranch, Inc. during negotiation of the horseback riding [***37] activity was a deceptive trade practice under HRS § 480-2. The Courbats concede that waivers are an acceptable method by which recreational tour operators and sponsors may seek to limit their liability in response to rising insurance and litigation costs, and admit that they were required to sign such a waiver before participating in a snorkeling activity earlier during the same Hawai’i vacation. Applying the Cliffdale Assoc. test to the undisputed facts in this case involving the inherently dangerous activity of horseback riding, I respectfully submit that the tour operator’s failure to disclose the waiver requirement of Dahana Ranch, Inc. during negotiation of the horseback riding activity with the Courbats was not a material omission implicating a deceptive trade practice under HRS § 480-2. I would thus affirm the circuit court’s grant of summary judgment in favor of Dahana Ranch, Inc.