If you can see that you can get hurt and you admit that you saw and knew that you assume the risk of your injuries.
Posted: July 8, 2019 Filed under: Assumption of the Risk, New York, Racing | Tags: activities, assumes, assumption of the risk, consented, Damages, defendants', deposition testimony, designated, doctrine of assumption of risk, injured plaintiff, marks, Mats, obstacle, participants, permanent, personal injury, quotation, Risks, sponsored, Sport, Summary judgment, summary judgment motion, triable issue of fact, unreasonably Leave a commentIn this obstacle course race the plaintiff could see if she fell off the apparatus she would land on a road and could get hurt. She also admitted she undertook the climb of the apparatus voluntarily, so she lost her lawsuit.
State: New York, Supreme Court of New York, Second Department
Plaintiff: Monica Ramos, et al.
Defendant: Michael Epstein Sports Productions, Inc., et al.
Plaintiff Claims: Negligence
Defendant Defenses: Assumption of the Risk
Holding: For the Defendant
Year: 2019
Facts
The plaintiffs commenced this action, inter alia, to recover damages for personal injuries allegedly sustained by the plaintiff Monica Ramos (hereinafter the injured plaintiff) while participating in an obstacle course race held at a public park in the Bronx. The event was organized and operated by the defendant Michael Epstein Sports Productions, Inc., and sponsored by the defendant Wolverine World Wide, Inc. The injured plaintiff allegedly fell when she was attempting to navigate the final portion of a rope obstacle called the “Monster Climb,” sustaining serious injuries.
The defendants moved for summary judgment dismissing the complaint on the basis that the action was barred by the doctrine of assumption of risk. In opposition, the plaintiffs argued that the assumption of risk doctrine cannot apply unless the sport or recreational activity takes place at a permanent, designated facility. They also argued that there were triable issues of fact as to whether the defendants unreasonably increased the risk of the Monster Climb obstacle by erecting it on a roadway without protective mats underneath it, by allowing an unlimited number of participants on the obstacle’s cargo nets at the same time, and by having staffers shout at the injured plaintiff to turn her body and hurry up.
Analysis: making sense of the law based on these facts.
The court started by explaining the Doctrine of Assumption of the Risk as applied in New York.
The “assumption of risk doctrine applies where a consenting participant in sporting and amusement activities ‘is aware of the risks; has an appreciation of the nature of the risks; and voluntarily assumes the risks'”. “If the risks of the activity are fully comprehended or perfectly obvious, plaintiff has consented to them and defendant has performed its duty”. Risks which are “commonly encountered” or “inherent” in a sport, as well as risks “involving less than optimal conditions,” are risks which participants have accepted and are encompassed by the assumption of risk doctrine. “It is not necessary . . . that the injured plaintiff have foreseen the exact manner in which his or her injury occurred, so long as he or she is aware of the potential for injury of the mechanism from which the injury results”. A participant’s awareness of risk is “to be assessed against the background of the skill and experience of the particular plaintiff”
Then the court reviewed the plaintiff’s deposition where she stated.
She testified that she saw that there were no mats under the Monster Climb, knew that she could fall and be hurt, and knew that she did not have to attempt the obstacle, but decided to anyway.
The plaintiff argued the Doctrine of Assumption of the Risk only applied to permanent designated venues. The court quickly threw out this argument. The plaintiff also did not submit any evidence showing the defendant had concealed or increased the risk of the activity.
The plaintiff lost.
So Now What?
So why write about this case? Because it shows how you can win if you just don’t try and hide the risks of the activity. In most states Assumption of the Risk is a defense to a negligence claim second to that of a release. In 7-8 states it is the only difference to an outdoor recreation negligence claim. Meaning Assumption of the risk is a defense that is good in all 50 states.
In the majority of states, it is the only defense to a claim by a minor.
Consequently, you should always create a situation where your customers can see the risk in advance, understand the danger presented by the risk and as in this case, opt out of the risk if they want.
If you do that, you create a simply effective defense that results in a simply easy to defend case and a short-written decision from the court in your favor.
What do you think? Leave a comment.
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Cyclists injured on a bike path after running into a downed tree, could not recover because the association that assisted in taking care of the bike path owed no duty to the cyclists.
Posted: June 17, 2019 Filed under: Cycling, Mountain Biking, Texas | Tags: balancing, bicycle, Bike Path, cases, Cause of action, City Park, contemporaneous, Dangerous Condition, Downed Tree, factors, Falling, Foreseeability, general negligence, grant summary judgment, Gross negligence, hearsay, injuries, Legal Duty, Mountain bike, negligence claim, no evidence, nonmovant, pet, Premises, Premises Liability, premises liability theory, scintilla, Summary judgment, summary judgment motion, Trail, Tree, Trial court, Yacht Club Leave a commentIf there is no duty, there is no liability. Always check to make sure there really is a duty owed to someone before you start to claim or defend negligence actions.
State: Texas; Court of Appeals of Texas, Second District, Fort Worth
Plaintiff: Norman Delamar
Defendant: Fort Worth Mountain Biker’s Association
Plaintiff Claims: general negligence and gross negligence
Defendant Defenses: No Duty
Holding: For the Defendants
Year: 2019
Summary
City parks had an agreement with the local cycling group to assist in keeping the bike pats in good shape. The ultimate responsibility for the bike paths was still held by the city. An injured cyclist who ran into a downed tree could not sue the cycling group because they owed no duty to the cyclists because the association did not have the authority from the city and did not accept a duty with the agreement with the city.
Facts
On July 12, 2014, Norman was riding his mountain bike on a trail in Gateway, a park owned by the City, when he came upon a downed tree resting across the trail at head level. Although known to be a “really good rider,” Norman asserts that because he did not have time to stop or avoid the tree, the tree “clotheslined” his head and neck and knocked him off of his bicycle, causing him injuries.
Norman sued the City, asserting claims of general negligence and gross negligence. In a single pleading, the City filed an answer and identified the Association as a responsible third party because of an “Adopt-A-Park Agreement” (Contract) that made the Association “responsible for constructing and maintaining the bike trail in question.” Norman then amended his petition and added the Association as a defendant in the suit.
The city’s contract with the association outlined things the association was to do to assist the city in keeping the trail available and generally covered trail maintenance. The city did not give up its right to control and manage the park where the trails were located.
The trial court dismissed the plaintiff’s claims, and this appeal ensued.
Analysis: making sense of the law based on these facts.
The first issue the court reviewed was this, a negligence claim or a premises liability claim.
Although premises liability is a form of negligence, “[n]egligence and premises liability claims . . . are separate and distinct theories of recovery, requiring plaintiffs to prove different, albeit similar, elements to secure judgment in their favor.”
The differences are subtle, but:
To prevail on a premises-liability claim, a plaintiff must prove (1) actual or constructive knowledge of some condition on the premises by the owner; (2) that the condition posed an unreasonable risk of harm; (3) that the owner did not exercise reasonable care to reduce or eliminate the risk; and (4) that the owner’s failure to use such care proximately caused the plaintiff’s injuries, whereas under the common law doctrine of negligence, a plaintiff must prove (1) a legal duty owed by one person to another; (2) a breach of that duty; and (3) damages proximately resulting from the breach.
The difference is, one is based on the actions of the defendant, and the other is based on a condition of the land.
While, theoretically, a litigant may maintain causes of action for both general negligence and premises liability, to be viable, the general negligence theory of recovery must be based not upon an injury resulting from the condition of the property, but upon the defendant’s contemporaneous activity. (analyzing claimant’s negligence and premises liability claims together). If the injury is one caused by a premises defect, rather than a defendant’s contemporaneous activity, a plaintiff cannot circumvent the true nature of the premises defect claim by pleading it as one for general negligence.
As similar as they may appear to be, you cannot recover on the same set of facts for both a negligence action and a premise’s liability action. Even the court stated understanding the differences could be “tricky.”
The trial court and appellate court found the plaintiff’s claims sounded in premise’s liability.
However, the court went on to discuss the plaintiff’s allegations that his claim was a negligence claim. The issue was whether the association had a legal duty to the plaintiff.
The question of legal duty is a “multifaceted issue” requiring courts to balance a number of factors such as the risk and foreseeability of injury, the social utility of the actor’s conduct, the consequences of imposing the burden on the actor, and any other relevant competing individual and social interests implicated by the facts of the case. “Although the formulation and emphasis varies with the facts of each case, three categories of factors have emerged: (1) the relationship between the parties; (2) the reasonable foreseeability of harm to the person injured; and (3) public policy considerations.”
Of the three, foreseeability as the dominant consideration, but not the sole consideration the court must review. Foreseeability alone is not sufficient to create a duty. “Foreseeability means that a person who possesses ordinary intelligence should have anticipated the danger that his negligent act would create for others.”
Although the association had some contractual responsibility for the trails, there was nothing the association could do about the trees. Only the city had the use of the chainsaws, and only the city could determine if a tree could be removed and then remove it.
And although it was foreseeable, a tree could fall on the trail; the issue required more analysis than that. The bike path was surrounded by thousands of trees. The plaintiff had ridden that path just two days earlier and admitted that the tree could have fallen two hours before he hit it. Although a tree falling was foreseeable, it was outside of the scope of something that you can do anything about, and on top of that the association had no authority to do anything about trees.
Finally, the agreement between the city and the association said nothing about the association agreeing to assume a legal duty to maintain the safety of the trails.
Based on our de novo review of the record, we hold that Norman failed to establish that the Association owed him a legal duty to protect him from the downed tree across the trail that the Association did not cause to fall, that may have fallen only hours-but no later than a day or two-before Norman struck it, and that the Association was not even authorized to unilaterally remove.
Because there could be no gross negligence if there was no general negligence, the plaintiffs gross and ordinary negligence claims were dismissed.
So Now What?
Foreseeability is a good thing for non-lawyers running a business or program to understand. Are your actions or inactions going to create a danger to someone.
The case does not state whether the city had any liability to the plaintiff, only the issues discussed in this decision were between the plaintiff and the defendant association.
More importantly, the court looked at trees falling as something that no one could really control. It was not liked anyone, the association or the city could come close to identifying trees that may fall in parks.
What do you think? Leave a comment.
 James H. “Jim” Moss |
Jim Moss is an attorney specializing in the legal issues of the outdoor recreation community. He represents guides, guide services, and outfitters both as businesses and individuals and the products they use for their business. He has defended Mt. Everest guide services, summer camps, climbing rope manufacturers; avalanche beacon manufacturers, and many more manufacturers and outdoor industries. Contact Jim at Jim@Rec-Law.us |
Jim is the author or co-author of eight books about legal issues in the outdoor recreation world; the latest is Outdoor Recreation Insurance, Risk Management,
Outdoor Recreation Insurance, Risk Management, and Law
To see Jim’s complete bio go here and to see his CV you can find it here. To find out the purpose of this website go here.
If you are interested in having me write your release, download the form and return it to me.
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trail, summary judgment, general negligence, premises liability, premises, trial court, legal duty, no evidence, summary judgment motion, pet, hearsay, grant summary judgment, premises liability theory, mountain bike, balancing, nonmovant, falling, dangerous condition, gross negligence, negligence claim, downed tree, contemporaneous, foreseeability, factors, cause of action, yacht club, scintilla, injuries, bicycle, cases
Stay away from Grooming Machines when you are skiing and boarding. They are dangerous!
Posted: June 10, 2019 Filed under: Assumption of the Risk, Michigan, Ski Area, Skiing / Snow Boarding | Tags: Assumption of risk, assumption of the risk, Blue Slope, bunny slope, Genuine Issue of Material Fact, Green Slope, Groomer, grooming, Grooming Machine, Inherent Risk, Michigan SASA, Michigan's Ski Area Safety Act, Motion for Summary Judgment, Motion to Strike, Mt. Brighton, Pump House, Ski Area Safety Act, ski lesson, Ski Slope, Ski Trip, Snow Groomer, Summary judgment Leave a commentSki area safety acts were written, no matter what anyone says, to protect ski areas. However, if the ski area does not follow the statutes, then they cannot use the statute as a defense.
Dawson et al., v. Mt. Brighton, Inc. et al., 2013 U.S. Dist. LEXIS 43730, 2013 WL 1276555
State: Michigan, United States District Court, E.D. Michigan, Southern Division
Plaintiff: Corinne Dawson et al.
Defendant: Mt. Brighton, Inc. et al.
Plaintiff Claims: Negligence
Defendant Defenses: Michigan Ski Safety Act
Holding: for the plaintiff
Year: 2013
Summary
Michigan Ski Safety Act lists grooming machines as an inherent risk of skiing. The act also requires signs to be posted on slopes where groomers are operating. Failure to have the proper sign creates an issue as to whether the inherent risk applies defeating the ski areas’ motion for summary judgment.
Facts
A.M., a 12 year old minor and a beginner skier, was at Mt. Brighton participating in a school sponsored ski trip on January 30, 2008. The temperature the day before and early morning hours was over 40 degrees, but by 8:00 a.m. the temperature was less than 10 degrees, with strong winds. Mt. Brighton began grooming the grounds later than normal on January 30, 2008, because of the poor conditions the day before. Only two ski slopes were open, the two rope beginner ski slopes.
An employee of Mt. Brighton for about 8 years, Sturgis operated the grooming machine that day. (Sturgis Dep. at 19) Sturgis indicated that his main concern when operating the machine was the safety of skiers around the grooming machine while in operation. (Sturgis Dep. at 52) Sturgis was grooming with another operator, Mike Bergen. (Sturgis Dep. at 83) Bergen led the grooming, followed by Sturgis. They began by grooming the bunny slopes and intermediate slopes which were groomed prior to the opening of the resort that day. (Sturgis Dep. at 66-67, 83, 86)
Sturgis and Bergen also groomed the area described as the “black and red” slopes, which were closed. (Sturgis Dep. at 86) Sturgis and Bergen then went to groom the area called the “blue” slope, which was closed. (Sturgis Dep. at 87) The resort had opened by this time. The route to the blue slope from the black and red slopes took them along the Main Lodge. Sturgis testified that his groomer passed well below the bunny hill slope, located to his left. (Sturgis Dep. at 96-98) Sturgis saw two individuals on top of the bunny hill and two girls next to a pump house to his right. Sturgis maintained eye contact with the girls because they were closer to the grooming machine than the individuals on top of the bunny hill. (Sturgis Dep. at 98) As Sturgis was going around the pump house, a boy alongside the groomer was saying something about the tiller. Sturgis jumped out and saw A.M. under the tiller. Sturgis lifted up the tiller, shut the machine off and sought first-aid. Sturgis had no idea from whence A.M. had come. (Sturgis Dep. at 104-05)
A.M. testified that he received a lesson that day on how to start and stop on skis and had skied down the bunny slope several times with his friends. (A.M. Dep. at 30-31, 33-34). This was A.M.’s second time skiing. A.M. had been skiing in the beginner area and had seen the snow groomers. (A.M. Dep. at 32-33) A.M. indicated he was racing with another boy down the hill. When he reached the bottom, he turned around to say “I won” and that was the last thing he remembered. A.M. testified that as he was going down the hill, he was trying to stop, “was slipping and trying to grab something.” (A.M. Dep. at 32-33) A.M. struck the groomer and was entrapped in the tiller. A.M. was dragged over 200 feet by the groomer.
Analysis: making sense of the law based on these facts.
The only real defense the defendant ski area had was the Michigan Ski Safety Act. The plaintiffs argue that because the defendants had violated the act, they could not use the act to protect them from a lawsuit.
The court then went through the act looking at the purpose for its creation and the protections it affords ski areas. One specific part of the act’s states that snow-grooming equipment is a risk.
MCL § 408.342. Duties of skier; acceptance of inherent dangers.
(2) Each person who participates in the sport of skiing accepts the dangers that inhere in that sport insofar as the dangers are obvious and necessary. Those dangers include, but are not limited to, injuries which can result from variations in terrain; surface or subsurface snow or ice conditions; bare spots; rocks, trees, and other forms of natural growth or debris; collisions with ski lift towers and their components, with other skiers, or with properly marked or plainly visible snow-making or snow-grooming equipment.
However, the act also requires that when snow grooming equipment is on the slope. there must be a sign posted.
MCL § 408.326a. Duties of ski area operators.
(f) Place or cause to be placed, if snow-grooming or snowmaking operations are being performed on a ski run, slope, or trail while the run, slope, or trail is open to the public, a conspicuous notice at or near the top of or entrance to the run, slope, or trail indicating that those operations are being performed.
The plaintiff argued the signs were not posted on the run.
The issue for the court was, did the violation of the duty created by the statute remove the defense the Michigan Ski Safety Act provides.
The assumption of the risk provision as to groomers specifically, is “broad” and “clear” and “contains no reservation or limitation of its scope.” However, “[t]he actions or inactions of a defendant cannot always be irrelevant, for if they were, the duties and liabilities placed on individual skiers would have no meaning.”
However, the court found that the issue presented by the plaintiff, that no sign was present created a genuine issue of material fact, which denies a motion for summary judgment.
In this case, it is clear A.M. assumed the risk of skiing. However, A.M. has created a genuine issue of material fact as to whether there was a notice at or near the top of or entrance to the ski run, slope, or trail indicating that snow grooming operations were being performed as set forth in M.C.L. § 408.236a(f). There remains a genuine issue of material fact as to whether the incident occurred falls within the phrase, “ski run, slope, or trail.”
The case went on to discuss other motions filed that did not relate to the facts or legal issues of interest.
So Now What?
A Colorado ski area had a multi-year nasty battle over that same issue eleven years earlier. Now signs are permanently posted at all lift loading areas and the at the tops of unloading areas so you know you can realize that groomers may be on the slopes.
At the same time, most ski areas have worked hard to remove snow groomers from the slopes when skiers are present.
For another case, colliding with a snow cat see: The actual risk causing the injury to the plaintiff was explicitly identified in the release and used by the court as proof it was a risk of skiing and snowboarding. If it was in the release, then it was a risk.
What do you think? Leave a comment.
 Jim Moss |
Jim Moss is an attorney specializing in the legal issues of the outdoor recreation community. He represents guides, guide services, and outfitters both as businesses and individuals and the products they use for their business. He has defended Mt. Everest guide services, summer camps, climbing rope manufacturers; avalanche beacon manufacturers, and many more manufacturers and outdoor industries. Contact Jim at Jim@Rec-Law.us |
Jim is the author or co-author of eight books about legal issues in the outdoor recreation world; the latest is Outdoor Recreation Insurance, Risk Management, and Law. To Purchase Go Here:
To see Jim’s complete bio go here and to see his CV you can find it here. To find out the purpose of this website go here.
Outdoor Recreation Insurance, Risk Management, and Law
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Appellate court slams climbing gym, all climbing gyms in New York with decision saying no climbing gym can use a release.
Posted: May 20, 2019 Filed under: Assumption of the Risk, Climbing Wall, New York, Release (pre-injury contract not to sue) | Tags: action to recover, appeals, appreciated, Climbing, consented, cross-appeal, cross-motion, engaging, gap, Inherent Risk, Inherent Risks, injured plaintiff, inter alia, leave to amend, Mats, personal injuries, personal injury damages, plaintiffs', Prima facie, Punitive damages, recover damages, recreational, Risks, rock, Rock climbing, Sport, Summary judgment 2 CommentsA climbing gym is a recreational facility. As such, under New York law, the court found all releases fail at climbing gyms. Short, simple and broad statement leaves little room to defend using a release in New York.
Citation: Lee, et al., v Brooklyn Boulders, LLC, 156 A.D.3d 689; 67 N.Y.S.3d 67; 2017 N.Y. App. Div. LEXIS 8723; 2017 NY Slip Op 08660
State: New York; Supreme Court of New York, Appellate Division, Second Department
Plaintiff: Jennifer Lee, et al.
Defendant: Brooklyn Boulders, LLC
Plaintiff Claims: Negligence
Defendant Defenses: Release and Assumption of the Risk
Holding: For the Plaintiff
Year: 2017
Summary
A climber fell between the mats at a climbing gym injuring her ankle. The release was thrown out because a climbing gym is a recreational facility and assumption of the risk did not prevail because the Velcro holding the mats together hid the risk.
Facts
The plaintiff Jennifer Lee (hereinafter the injured plaintiff) allegedly was injured at the defendant’s rock climbing facility when she dropped down from a climbing wall and her foot landed in a gap between two mats. According to the injured plaintiff, the gap was covered by a piece of Velcro.
Analysis: making sense of the law based on these facts.
The trial court dismissed the defendant’s motion for summary judgment, and the defendant appealed. There were two issues the defendant argued on appeal: Release and Assumption of the Risk.
The court threw out the release in a way that makes using a release in New York at a climbing gym difficult if not impossible.
Contrary to the defendant’s contention, the release of liability that the injured plaintiff signed is void under General Obligations Law § 5-326 because the defendant’s facility is recreational in nature. Therefore, the release does not bar the plaintiffs’ claims.
The court threw out the release with a very far-reaching statement. “the defendant’s facility is recreational in nature.” It is unknown if the defendant tried to argue educational issues such as in Lemoine v Cornell University, 2 A.D.3d 1017; 769 N.Y.S.2d 313; 2003 N.Y. App. Div. LEXIS 13209 (NY 2003)
The court then looked at the defense of assumption of the risk.
Relieving an owner or operator of a sporting venue from liability for inherent risks of engaging in a sport is justified when a consenting participant is aware of the risks; has an appreciation of the nature of the risks; and voluntarily assumes the risks. If the risks of the activity are fully comprehended or perfectly obvious, plaintiff has consented to them and defendant has performed its duty. Moreover, “by engaging in a sport or recreational activity, a participant consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation
This court would seem to agree with an assumption of the risk defense based on statements made in case law set out above.
However, the facts in this case do not lead to such a clear decision. Because the gap between the mats was covered by Velcro, the court thought the Velcro concealed the risk.
Here, the defendant failed to establish, prima facie, that the doctrine of primary assumption of risk applies. The defendant submitted the injured plaintiff’s deposition testimony, which reveals triable issues of fact as to whether the gap in the mats constituted a concealed risk and whether the injured plaintiff’s accident involved an inherent risk of rock climbing.
The Velcro, which was designed to keep the mats from separating, concealed the gap, which injured the plaintiff’s foot, when she landed between the mats. The defense of assumption of the risk was not clear enough for the court to decided the issue. Therefore assumption of the risk must be decided by a jury.
Since the defendant failed to establish its prima facie entitlement to judgment as a matter of law, its motion was properly denied, regardless of the sufficiency of the opposition papers
So Now What?
It is getting tough to defend against claims and injuries in New York, specifically in climbing gyms. For an almost identical case factually see: Employee of one New York climbing wall sues another NYC climbing wall for injuries when she fell and her foot went between the mats.
Obviously, the facts in the prior New York climbing gym case, where the plaintiff fell between the mats provided the “track” used by this plaintiff in this lawsuit.
If your climbing gym has mats held together with Velcro or some other material, paint the material yellow or orange and identify that risk in your release or assumption of the risk agreement.
Assumption of the risk may still be a valid defense see NY determines that falling off a wall is a risk that is inherent in the sport. Unless you are teaching a class or some other way to differentiate your gym or that activity from a recreational activity, you are going to have to beef up your assumption of the risk paperwork and information to stay out of court.
What do you think? Leave a comment.
Copyright 2019 Recreation Law (720) 334 8529
If you like this let your friends know or post it on FB, Twitter or LinkedIn
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Facebook Page: Outdoor Recreation & Adventure Travel Law
Email: Jim@Rec-Law.US
By Recreation Law Rec-law@recreation-law.com James H. Moss
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leave to amend, punitive damages, sport, gap, recover damages, personal injuries, summary judgment, rock climbing, inherent risks, prima facie, cross-appeal, recreational, engaging, mats, inter alia
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You can collect for damaged gear you rented to customers if your agreements are correct. This snowmobile outfitter recovered $27,000 for $220.11 in damages.
Posted: May 13, 2019 Filed under: Colorado, Contract, Release (pre-injury contract not to sue) | Tags: admissible, attorneys' fees, cases, collection, collector, credit card, debt collection, debt collector, demand letter, demand letters, discovery, disputed, documents, Email, engaging, entity, genuine, law firm, letters, machine, matters, missing, Mountain Law Group, nonmoving, nonmoving party, opposing, owed, parties, practice of law, preface, principal purpose, regularity, regularly, Rental, Rental Agreement, ride, signature, Snowmobile, Summary judgment, summary judgment motion 1 CommentIt helps to get that much money if the customer is a jerk and tries to get out of what they owe you. It makes the final judgment even better when one of the plaintiffs is an attorney.
Citation: Hightower-Henne v. Gelman, 2012 U.S. Dist. LEXIS 4514, 2012 WL 95208
State: Colorado; United States District Court for the District of Colorado
Plaintiff: Tracy L. Hightower-Henne, and Thomas Henne
Defendant: Leonard M. Gelman
Plaintiff Claims: Violation of the Fair Debt Collections Act
Defendant Defenses: They did not violate the act
Holding: For the Defendant
Year: 2012
Summary
The plaintiff’s in this case rented snowmobiles and brought one back damaged. The release they signed to rent the snowmobiles stated if they damaged the snowmobiles they would have to pay for the damage and any lost time the snowmobiles could not be rented (like a car rental agreement).
The plaintiffs damaged a snowmobile and agreed to pay for the damages. The Snowmobile outfitter agreed not to charge them for the lost rental income.
When the plaintiff’s got home, they denied the claim on their credit card bill. The Snowmobile outfitter sued them for the $220.11 in damages and received a judgment of $27,000.
The plaintiff then sued the attorney representing the snowmobile outfitter for violation of the federal Fair Debt Collection’s act, which is the subject of this lawsuit. The plaintiff lost that lawsuit also.
This case shows how agreements in advance to pay for damages from rented equipment are viable and can be upheld if used.
Facts
Although this is described as a debt collection case, it is a case where an outfitter can recover for the damages done to the equipment that he rented to the plaintiffs. The facts are from this case, which took them from an underlying County Court decision in Summit County Colorado.
Mrs. Hightower-Henne, a Nebraska attorney, rented two snowmobiles from Colorado Backcountry Rentals (“CBR”) for herself and her husband, signing the rental agreement for the two machines and declining the offered insurance to cover loss or damage to the machines while in their possession. While at the CBR’s office, the Hennes were shown a video depicting proper operation of snowmobiles in general and were also verbally advised on snowmobile use by an employee of CBR. Plaintiffs, a short while thereafter, met another employee of CBR, Mr. Weber, at Vail Pass and were given possession of the snowmobiles after an opportunity to inspect the machines. Plaintiffs utilized their entire allotted time on the snowmobiles and brought them back to Mr. Weber as planned. Mr. Weber immediately noticed that the snowmobile ridden by Mr. Henne was missing its air box cover and faring, described as a large blue shield on the front of the snowmobile, entirely visible to any driver. At the he returned the snowmobile, Mr. Henne told Mr. Weber that the parts had fallen off approximately two hours into the ride and that he had tried to carry the faring back, but, as he was unable to do so, he left the part on the trail.3 Mr. Henne signed a form acknowledging the missing part(s) and produced his driver’s license and a credit card with full intent that charges to fix the snowmobile would be levied against that card. Mr. Henne signed a blank credit card slip, which the parties all understood would be filled-in once the damage could be definitively ascertained.4 Although CBR, pursuant to the rental agreement signed by Mrs. Hightower-Henne, was entitled to charge the Hennes for loss of rentals for the snowmobile while it was being repaired, CBR waived that fee and charged Mr. Henne a total of only $220.11.
…one of the rented snowmobiles suffered damage while in the possession of Mr. Henne. Although agreeing to pay for the damage initially, Mr. Henne later disputed the charges levied by CBR against his credit card, resulting in a collection lawsuit brought by CBR against Mr. and Mrs. Henne in Summit County Court. This court takes the underlying facts from the Judgment Order of Hon. Wayne Patton in the Summit County Case as Judge Patton presided over a trial and therefore had the best opportunity to assess the witnesses, including their credibility and analyze the exhibits. The defendant in this case, Leonard M. Gelman, was the attorney for CBR in the Summit County case.
This story changed at trial in the Summit County case, where Mr. Henne reported that the parts fell off the machine about 5-10 minutes into the ride. Mr. Henne also testified that he did not know he was missing a part – he claimed a group of strangers told him that his snowmobile was missing a part and he thereafter retraced his route to try to find the piece but could not find it. Judge Patton found that “Mr. Henne’s testimony does not make sense to the court.” The court found that the evidence indicated the parts came off during the ride and that since the clips that held the part on were broken and the “intake silencer” was cracked, Judge Patton indicated, “The court does not believe that the fairing just fell off.”
Mr. Henne’s proffered credit card was for a different account that Mrs. Hightower-Henne had used to rent the snowmobiles.
CBR’s notation on the Estimated Damages form states, “Will not charge customer for the 2 days loss rents as good will.”
At trial in the Summit County case, Mr. and Mrs. Henne maintained that Mr. Henne’s sig-nature on the damage estimate and the credit card slip were forgeries. The court found that Mr. Weber, CBR’s employee who witnessed Mr. Henne sign the documents, was a credible witness and found Mr. Henne’s claim that he had not signed the documents was not credible. The court also found that there was no incentive whatsoever for anyone to have forged Mr. Henne’s signature on anything since “[CBR] already had Ms. Hightower-Henne’s credit card information and authorization so even if Mr. Henne had refused to sign the disputed documents it had recourse without having to resort to subterfuge.”
After deciding in favor of CBR on the liability of Mr. and Mrs. Henne for the damage to the snowmobile in the total amount of $653.60, Judge Patton considered the issue of attorney’s fees and costs incurred in that proceeding. Finding that the original rental documents signed by Mrs. Hightower-Henne contained a prevailing party award of attorney fees pro-vision, the court awarded CBR $25,052.50 in attorney’s fees against Mrs. Hightower-Henne plus $1,737.92 in costs.6 The court stated that even though the attorney fee award was substantial considering the amount of the original debt, the time expended by CBR’s counsel was greatly exacerbated by Mrs. Hightower-Henne’s “motions and threats” and that it was the Hennes who “created the need for [considerable] hours by their actions in filing baseless criminal complaints, filing motions to continue the trial and by seeking to have phone testimony of several witnesses who had no knowledge of what took place while Defendant’s (sic) had possession of the snowmobiles.”
As a result of groundless criminal claims, baseless counterclaims, perjured testimony and over-zealous defense, instead of owing $220.11 for the snowmobile’s missing part, after the dust settled on the Summit County case, the Hennes became responsible for a judgment in excess of $27,000.00.
Analysis: making sense of the law based on these facts.
The facts set forth in the underlying damage recovery case, are the important part. In this case, the attorney for the snowmobile outfitter was found not to have violated the federal Fair Debt Collections Act.
In awarding judgment to the defendant in this case, the judge also awarded him costs.
Defendant Leonard M. Gelman’s Motion for Summary Judgment is GRANTED and this case is dismissed with prejudice. Defendant may have his cost by filing a bill of costs pursuant to D.C.COLO.LCivR 54.1 and the Clerk of Court shall enter final judgment in favor of Defendant Gelman in accordance with this Order.
Adding insult to injury. Sometimes it be better to quit while you are behind.
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Jim Moss |
Jim Moss is an attorney specializing in the legal issues of the outdoor recreation community. He represents guides, guide services, outfitters both as businesses and individuals and the products they use for their business. He has defended Mt. Everest guide services, summer camps, climbing rope manufacturers, avalanche beacon manufacturers, and many more manufacturers and outdoor industries. Contact Jim at Jim@Rec-Law.us |
Jim is the author or co-author of six books about the legal issues in the outdoor recreation world; the latest is Outdoor Recreation Insurance, Risk Management
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Dawson et al., v. Mt. Brighton, Inc. et al., 2013 U.S. Dist. LEXIS 43730, 2013 WL 1276555
Posted: May 6, 2019 Filed under: Assumption of the Risk, Legal Case, Michigan, Ski Area, Skiing / Snow Boarding | Tags: Assumption of risk, assumption of the risk, Blue Slope, bunny slope, Genuine Issue of Material Fact, Green Slope, Groomer, grooming, Grooming Machine, Inherent Risk, Michigan SASA, Michigan's Ski Area Safety Act, Motion for Summary Judgment, Motion to Strike, Mt. Brighton, Pump House, Ski Area Safety Act, ski lesson, Ski Slope, Ski Trip, Snow Groomer, Summary judgment Leave a commentTo Read an Analysis of this decision see
Stay away from Grooming Machines when you are skiing and boarding. They are dangerous!
Dawson et al., v. Mt. Brighton, Inc. et al., 2013 U.S. Dist. LEXIS 43730, 2013 WL 1276555
Corinne Dawson et al., Plaintiffs, v. Mt. Brighton, inc. et al., Defendants.
Civil Action No. 11-10233
United States District Court, E.D. Michigan, Southern Division.
March 27, 2013
ORDER DENYING MOTION FOR SUMMARY JUDGMENT, ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR SANCTIONS AND ORDER SETTING FINAL PRETRIAL CONFERENCE AND TRIAL DATES
DENISE PAGE HOOD, District Judge.
I. BACKGROUND
On August 10, 2011, a First Amended Complaint was filed by Plaintiffs Corinne Dawson, individually and as co-Next Friend of A.M., a minor, Peter Miles, co-Next Friend of A.M., a minor, Justine Miles and Dwaine Dawson against Defendants Mt. Brighton, Inc. and Robert Sturgis alleging: By A.M., by and through his Co-Next Friends, Statute Violations against All Defendants under the Michigan Ski Area Safety Act, M.C.L. § 408.326a (Count I); By Corinne Dawson, Dwaine Dawson and Justine Miles, Statute Violations by All Defendants under the Michigan Ski Area Safety Act, M.C.L. § 408.326a (Count II); By A.M., by and through his Co-Next Friends, Common Law Premises Liability against All Defendants (Count III); and, By Corinne Dawson, Dwaine Dawson and Justine Miles, Common Law Premises Liability against All Defendants (Count IV).
A.M., a 12 year old minor and a beginner skier, was at Mt. Brighton participating in a school sponsored ski trip on January 30, 2008. The temperature the day before and early morning hours was over 40 degrees, but by 8:00 a.m. the temperature was less than 10 degrees, with strong winds. Mt. Brighton began grooming the grounds later than normal on January 30, 2008, because of the poor conditions the day before. Only two ski slopes were open, the two rope beginner ski slopes.
An employee of Mt. Brighton for about 8 years, Sturgis operated the grooming machine that day. (Sturgis Dep. at 19) Sturgis indicated that his main concern when operating the machine was the safety of skiers around the grooming machine while in operation. (Sturgis Dep. at 52) Sturgis was grooming with another operator, Mike Bergen. (Sturgis Dep. at 83) Bergen led the grooming, followed by Sturgis. They began by grooming the bunny slopes and intermediate slopes which were groomed prior to the opening of the resort that day. (Sturgis Dep. at 66-67, 83, 86)
Sturgis and Bergen also groomed the area described as the “black and red” slopes, which were closed. (Sturgis Dep. at 86) Sturgis and Bergen then went to groom the area called the “blue” slope, which was closed. (Sturgis Dep. at 87) The resort had opened by this time. The route to the blue slope from the black and red slopes took them along the Main Lodge. Sturgis testified that his groomer passed well below the bunny hill slope, located to his left. (Sturgis Dep. at 96-98) Sturgis saw two individuals on top of the bunny hill and two girls next to a pump house to his right. Sturgis maintained eye contact with the girls because they were closer to the grooming machine than the individuals on top of the bunny hill. (Sturgis Dep. at 98) As Sturgis was going around the pump house, a boy alongside the groomer was saying something about the tiller. Sturgis jumped out and saw A.M. under the tiller. Sturgis lifted up the tiller, shut the machine off and sought first-aid. Sturgis had no idea from whence A.M. had come. (Sturgis Dep. at 104-05)
A.M. testified that he received a lesson that day on how to start and stop on skis and had skied down the bunny slope several times with his friends. (A.M. Dep. at 30-31, 33-34). This was A.M.’s second time skiing. A.M. had been skiing in the beginner area and had seen the snow groomers. (A.M. Dep. at 32-33) A.M. indicated he was racing with another boy down the hill. When he reached the bottom, he turned around to say “I won” and that was the last thing he remembered. A.M. testified that as he was going down the hill, he was trying to stop, “was slipping and trying to grab something.” (A.M. Dep. at 32-33) A.M. struck the groomer and was entrapped in the tiller. A.M. was dragged over 200 feet by the groomer.
This matter is now before the Court on Defendants’ Motion for Summary Judgment. Plaintiffs filed a response, along with various documents, including “Plaintiffs’ Separate Statement of Facts”, Declaration of Larry Heywood, and Declaration of Timothy A. Loranger. Defendants filed a reply. Plaintiffs also filed a document titled “Plaintiffs’ Evidentiary Objections and Motion to Strike” portions of Defendants’ summary judgment motion. Defendants replied to this motion. Defendants filed a Motion to Adjourn Scheduling Order Dates seeking adjournment of the December 4, 2012 trial date, to which Plaintiffs submitted a response that they did not object to the motion.
II. MOTION FOR SUMMARY JUDGMENT
A. Standard of Review
Rule 56(a) of the Rules of Civil Procedures provides that the court “shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The presence of factual disputes will preclude granting of summary judgment only if the disputes are genuine and concern material facts. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute about a material fact is “genuine” only if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. Although the Court must view the motion in the light most favorable to the nonmoving party, where “the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). Summary judgment must be entered against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial. In such a situation, there can be “no genuine issue as to any material fact, ” since a complete failure of proof concerning an essential element of the nonmoving party’s case necessarily renders all other facts immaterial. Celotex Corp., 477 U.S. at 322-23. A court must look to the substantive law to identify which facts are material. Anderson, 477 U.S. at 248.
B. Michigan’s Ski Area Safety Act
Defendants argue they are entitled to summary judgment under Michigan’s Ski Area Safety Act (“SASA”) which bars recovery for any injuries under common law premises liability or negligence claims. Plaintiffs respond that because of Defendants’ violation of SASA, specifically failing to post any signs that grooming was taking place, Defendants are not immune from liability under SASA. Plaintiffs also argue that SASA does not apply since the place where the incident occurred was not a ski run, slope or trail.
SASA was enacted in 1962. The purposes of SASA include, inter alia, safety, reduced litigation, and economic stabilization of an industry which contributes substantially to Michigan’s economy. Shukoski v. Indianhead Mountain Resort, Inc., 166 F.3d 848, 850 (6th Cir. 1999). The Michigan legislature perceived a problem with respect to the inherent dangers of skiing and the need to promote safety, coupled with the uncertain and potentially enormous ski area operators’ liability. Id. (citation omitted) Given the competing interests between safety and liability, the legislature decided to establish rules regulating ski operators and the ski operators’ and skiers’ responsibilities in the area of safety. Id. The Legislature decided that all skiers assume the obvious and necessary dangers of skiing, limiting ski area operators’ liability and promoting safety. Id. The statute states:
(1) While in a ski area, each skier shall do all of the following:
(a) Maintain reasonable control of his or her speed and course at all times.
(b) Stay clear of snow-grooming vehicles and equipment in the ski area.
(c) Heed all posted signs and warnings.
(d) Ski only in areas which are marked as open for skiing on the trial board…
(2) Each person who participates in the sport of skiing accepts the dangers that inhere in that sport insofar as the dangers are obvious and necessary. Those dangers include, but are not limited to, injuries which can result from variations in terrain; surface or subsurface snow or ice conditions; bare spots; rocks, trees and other forms of natural growth or debris; collisions with ski lift towers and their components, with other skiers, or with properly marked or plainly visible snow-making or snow-grooming equipment.
M.C.L. § 408.342. This subjection identifies two types of dangers inherent in the sport. Anderson v. Pine Knob Ski Resort, Inc., 469 Mich. 20, 24 (2003). The first is described as natural hazards and the second as unnatural hazards. Id. Both types of examples are only examples because the Legislature used the term “dangers include, but are not limited to.” Id. at 25.
A.M. was injured by snow-grooming equipment, which is expressly noted in SASA. Plaintiffs argue that there was no sign posted regarding the use of snow-grooming equipment, as required in the statute, M.C.L. § 408.326(a), which states,
Each Ski Area operator shall, with respect to operation of a ski area, do all of the following:
* * *
(f) Place or case to be placed, if snow grooming or snow making operations are being performed on a ski run, slope, or trial while the run, slope, or trial is open to the public, a conspicuous notice at or near the top of the entrance to the run, slope, or trail indicating that those operations are being performed.
M.C.L. § 408.326(a).
The Michigan courts have held that even if there are allegations that provisions of SASA were violated which may have caused injury, there is no limitation in SASA as to the risks assumed. Rusnak v. Walker, 273 Mich.App. 299, 307 (2006). Rusnak was a suit under SASA involving a collision between two skiers. In Rusnak, the Michigan Court of Appeals noted that, “the Legislature did not start off the subsection by stating except for violations of other sections of this act, ‘ the skier assumes the obvious and necessary dangers inherent in the sport.” Id . (italics added). The assumption of the risk provision in M.C.L. § 408.342 is “clear and unambiguous, providing that a skier assumes the risk of obvious and necessary dangers that inhere in the sport, and [t]hose dangers’ specifically include collisions” with snow groomers. Id.
The Michigan Supreme Court has made clear that the Legislature created a certainty concerning a ski area operator’s liability risks. Anderson, 469 Mich. at 26. In a case where a skier collided at the end of a ski run with a shack that housed race timing equipment, the Michigan Supreme Court noted:
To adopt the standard plaintiff urges would deprive the statute of the certainty the Legislature wished to create concerning liability risks. Under plaintiff’s standard, after any accident, rather than immunity should suit be brought, the ski-area operator would be engaged in the same inquiry that would have been undertaken if there had been no statute ever enacted. This would mean that, in a given case, decisions regarding the reasonableness of the place of lift towers or snow groomers, for example, would be placed before a jury or judicial fact-finder. Yet it is just this process that the grant of immunity was designed to obviate. In short, the Legislature has indicated that matters of this sort are to be removed from the common-law arena, and it simply falls to us to enforce the statute as written. This we have done.
Id. There is no need to consider whether the ski operator retains a duty under common-law premises liability. Id. at 26-27. Plaintiffs’ argument that Defendants violated SASA by failing to post the appropriate sign that snow grooming was taking place does not override the express assumption of the risk by the skier enacted by the Legislature.
The assumption of the risk provision as to groomers specifically, is “broad” and “clear” and “contains no reservation or limitation of its scope.” Rusnak, 273 Mich.App. at 309. However, “[t]he actions or inactions of a defendant cannot always be irrelevant, for if they were, the duties and liabilities placed on individual skiers would have no meaning.” Id. “Indeed, we cannot favor one section, such as the assumption-of-risk provision, over other equally applicable sections, such as the duty and liability provisions.” Id. The Rusnak panel held that a plaintiff does assume the risks set forth in the statute. Id. The provisions must be read together while giving them full force and effect. Id. However, a plaintiff can still recover limited damages against a defendant if the plaintiff can prove that a defendant violated SASA, causing the injuries suffered by the plaintiff. Id. In such a situation, the defendant’s acts would be relevant for a “comparative negligence” evaluation. Id. at 311. Depending on the facts, the actions of a defendant may be relevant for purposes of determining the allocation of fault and, perhaps damages. Id. at 313. Reading the provisions together is consistent with the plain language of the two provisions at issue, which conform to the legislative purpose of SASA – to reduce the liability of ski operators, while at the same time placing many, but not all, risks of skiing on the individual skiers. Id. at 314.
In this case, it is clear A.M. assumed the risk of skiing. However, A.M. has created a genuine issue of material fact as to whether there was a notice at or near the top of or entrance to the ski run, slope, or trail indicating that snow grooming operations were being performed as set forth in M.C.L. § 408.236a(f). There remains a genuine issue of material fact as to whether the incident occurred falls within the phrase, “ski run, slope, or trail.” The State of Michigan Investigator and Defendants’ expert, Mark Doman, stated at his deposition that the area where the incident occurred could be described as a “ski run, slope, or trail” even though Defendants argue that this area is a “transition area.” (Doman Dep., p. 74) Summary judgment on the issue of notice under M.C.L. § 408.236a(f) is denied. Although there is no genuine issue of material fact that A.M. assumed the risk as to snow groomers under SASA, Defendants’ actions as to their duties under M.C.L. § 408.236a(f) as to notice is relevant for purposes of determining the allocation of fault and damages under a comparative negligence analysis.
III. SANCTIONS
Defendants seek sanctions against Plaintiffs under the Court’s inherent power. Defendants argue that Plaintiffs have no intention to follow applicable well established court and ethical rules, including: page limit; entering onto Mt. Brighton for inspection in violation of Fed.R.Civ.P. 34 without notice to Defendants; and having contact with the owner of Mt. Brighton without counsel in violation of the Michigan Rules of Professional Conduct 4.1 and 4.2. Defendants seek dismissal based on Plaintiffs’ alleged pattern of discovery abuse. Defendants claim that Plaintiffs’ counsel took an oath in this Circuit to follow the rules and practice with integrity, yet counsel had no plans to follow the oath and this Court must sanction Plaintiffs’ counsel to deter any further continued conduct. Plaintiffs respond that they did not violate the court or ethical rules.
A. Page Limit
As to the page limit claim, Defendants argue that Plaintiffs violated Local Rule 7.1 regarding page limits since Plaintiffs submitted separate documents setting forth their version of “material facts” separate from Plaintiffs’ response brief, in addition to other documents including “objection” to the summary judgment motion and “declarations” by Plaintiffs’ experts.
Plaintiffs respond that as to the page limit issue, this matter was argued at the time the Court heard the summary judgment motion. In any event, Plaintiffs claim they did not exceed the page limit since Local Rule 7.1(d)(3) states that the text of a brief may not exceed 20 pages and that Plaintiffs’ response brief was only 19 pages. Plaintiffs agree that the accompanying documents in support of their brief included declaration of expert witness, list of material facts, a motion to Defendants’ report and objections to Defendants’ purported “evidence.” These documents are not part of their response “brief” but other documents supporting Plaintiffs’ arguments. Plaintiffs argue that while there is nothing in the rules which requires the filing of a separate document of undisputed facts, there is nothing prohibiting such a filing.
Local Rule 7.1(d)(3) provides, “[t]he text of a brief supporting a motion or response, including footnotes and signatures, may not exceed 20 pages. A person seeking to file a longer brief may apply ex parte in writing setting forth the reasons.” E.D. Mich. LR 7.1(d)(3). A review of Plaintiffs’ “Response” to the Motion for Summary Judgment (Doc. #28) shows that the brief is only 19 pages, which does not violate Local Rule 7.1(d)(3). However, Plaintiffs did file other documents supporting their opposition including a separate document entitled “Plaintiffs’ Separate Statement of Material Facts” (Doc. #29) which consists of 14 pages. This document highlights facts and source of the facts, including declarations and deposition page numbers. Plaintiffs also filed a separate document entitled “Plaintiffs’ Evidentiary Objections and Motion to Strike” (Doc. #30) which consists of 9 pages. Plaintiffs also filed two documents entitled “Declaration of Larry Heywood” (Doc. #31) and “Declaration of Timothy A. Loranger, Esq.” (Doc. #32).
Defendants did not cite to any authority, other than the Court’s inherent power, that violation of a Local Rule must result in dismissal of a case. It is noted that at the time of the filing of the response and other documents in September 2012, Defendants did not object to these filings by a separate motion until the instant motion which was filed on November 26, 2012. Defendants addressed the documents Plaintiffs filed in Defendants’ reply brief and so argued at oral arguments. Generally, exhibits and declarations supporting motions or response briefs are “attached” as exhibits to the main brief. As to Plaintiffs’ Separate Statement of Material Facts and Evidentiary Objections and Motion to Strike, these arguments should have been made in Plaintiffs’ main brief.[1] These documents may have been filed to circumvent the page limit requirement. However, the Court has the discretion to allow filings separate from the parties’ main brief. A violation of the page limit local rule does not support dismissal of the case as sanctions.
B. Rule 34
Defendants argue that Plaintiffs violated Fed.R.Civ.P. Rule 34 regarding inspection of land when Plaintiffs’ counsel went to Mt. Brighton, without notice to Defendants and their counsel on two occasions.
Plaintiffs admit that counsel visited Mt. Brighton property without providing any notice to the defense because Plaintiffs believed no such notice was necessary since Mt. Brighton was open to the public for business when they visited. Plaintiffs argue that Rule 34 only states that a party “may” serve a request to permit entry and that the rule does not state “must.” Plaintiffs admit photographs were taken at that time, but that taking photographs was not prohibited by Mt. Brighton. Plaintiffs claim that admissions of these photographs at trial should be brought as motions in limine.
Rule 34 of the Rules of Civil Procedure provides:
(a) In General. A party may serve on any other party a request within the scope of Rule 26(b):
* * *
(2) to permit entry onto designated land or other property possessed or controlled by the responding party, so that the requesting party may inspect, measure, survey, photograph, test, or sample the property or any designated object or operation on it.
Fed. R. Civ. P. 34(a)(2).
Generally, if a party seeks protection from certain discovery matters, that party usually files a Motion for protective order under Fed.R.Civ.P. Rule 26(c). Here, Defendants did not seek such protection, nor did Defendants object to Plaintiffs’ entry of the land once they learned of the first instance in June 29, 2012 during the deposition of David Mark Doman wherein Plaintiffs’ counsel admitted he had sent an agent to take pictures of Defendant’s premises without notice to defense counsel. The instant Motion as filed in November 2012. Discovery rule violations are usually addressed under Rule 37. Defendants did not file a motion under Rule 37 to prohibit Plaintiffs from using any photographs they took in connection with any pre-trial proceedings at that time.
The second incident occurred on November 14, 2012, the same day oral argument was heard on the summary judgment motion. Joseph Bruhn, owner of Mt. Brighton, indicated he met three gentlemen who did not identify themselves but indicated they were there for “breakfast” even though it was 11:00 a.m. (Bruhn Aff., ¶ 5) Mr. Bruhn indicated the restaurant was not open and later noticed the gentlemen were taking pictures from the deck. (Bruhn Aff., ¶ 8) Mr. Bruhn learned the gentlemen were lawyers from Los Angeles in town to attend facilitation of this matter to be held the next day, November 15, 2012. (Bruhn, Aff., ¶9) This second incident is troublesome. Although Mr. Bruhn did not identify himself as the owner of Mt. Brighton, Plaintiffs’ counsel themselves knew the purpose of their visit – to inspect the property and take pictures.
In general, Rule 37(b)(2)(B) of the Rules of Civil Procedure provides for sanctions where a party fails to comply with a court order requiring the party to produce another person for examination, including prohibiting the disobedient party from introducing matters in evidence, striking pleadings, rendering default judgment against the disobedient party, treating as contempt of court the failure to obey an order or any further “just orders.” Fed.R.Civ.P. 37(b)(2)(B); 37(b)(2)(A). Here, no order has been entered by the Court striking the photographs or finding that Plaintiffs violated Rule 34. The “spirit” of Rule 34 was violated in that Plaintiffs did not notify the defense they were inspecting the premises for discovery purposes, even if the property is open to the public. The property is private property, but open to the public. The lay of the land is at the core of these proceedings. Plaintiffs should have notified the defense they sought to inspect the land as required under Rule 34. “Trial by surprise” is not a tactic in civil actions and related discovery proceedings. However, dismissal of the case is not warranted at this time, but the Court will consider this matter at trial by way of a motion in limine or objection if any testimony or exhibit is sought to be introduced relating to Plaintiffs’ first visit to Mt. Brighton. The second visit is addressed below.
C. Violation of Michigan Rules of Professional Responsibility
Defendants seek dismissal as sanctions because they allege that Plaintiffs’ counsel violated the Michigan Rules of Professional Responsibility (“MRPC”) by contacting Mt. Brighton’s owner without counsel. Plaintiffs respond that when counsel visited Mt. Brighton unannounced, counsel did not know that the gentleman greeting him at the Mt. Brighton restaurant was Mr. Bruhn, the owner of Mt. Brighton. Mr. Bruhn informed counsel that the kitchen was not open but he never indicated that Mt. Brighton was closed. Plaintiffs’ counsel then went out onto the patio to take a few photographs of the ski/golf area. Plaintiffs claim that Defendants admit in their moving papers that Plaintiffs did not violate MRPC 4.2 since there was no discussion of any aspect of the “subject of the representation” but that because counsel did not identify himself to Mr. Bruhn. Mr. Bruhn indicated in an affidavit that he did not learn of Plaintiffs’ counsel identity until the facilitation in this matter the day after.
MRPC 4.2 provides, “In representing a client, a lawyer shall not communicate about the subject of the representation with a party whom the lawyer knows to be represented in the matter by another lawyer, unless the lawyer has the consent of the other lawyer or is authorized by law to do so.” Although Defendants admit that “arguably” Plaintiffs did not directly speak with Mr. Bruhn as to the “subject of the representation, ” Plaintiffs’ counsel knew the reason they were on the premises was to take photographs of the property. Defendants seek an order from this Court finding that Defendants violated Rule 4.2 and that the proper sanction is to dismiss the case.
Although Plaintiffs’ counsel, as noted by the defense, did not “arguably” violate Rule 4.2, the Court cannot expressly so find. Violations of the professional responsibility code must be brought under E.D. Mich. LR 83.22. Defendants have not sought such a formal request. The Court, however, under Fed.R.Civ.P. 37(b)(2), will not allow Plaintiffs to offer any photographs taken of the property during the second visit to Mt. Brighton on November 14, 2012 since they knew the purpose of their visit was to take photographs and could have so indicated to opposing counsel, Mr. Bruhn or to any of Defendants’ agents. Plaintiffs had notice since June 2012 and under the discovery rules that they were required to notify Defendants of any access to Defendants’ property.
D. Rule 11 Sanctions
In Plaintiffs’ response, they indicate they may seek sanctions under Rule 11 themselves. Generally, Rule 11 provides that prior to requesting/filing a Motion for sanctions under this rule, the party must serve notice to the opposing party under the safe harbor provision of Rule 11. Fed.R.Civ.P. 11(c)(1)(A). Rule 11(c) states that the Motion shall not be filed if not submitted to the opposing party. Pursuant to the “safe harbor” provision in Rule 11, a party seeking sanctions under the rule must first serve notice to the opposing party that such a Motion will be filed. If either party seeks to file such Rule 11 sanctions, they must do so with the “safe harbor” provision in mind.
IV. CONCLUSION
For the reasons set forth above,
IT IS ORDERED that Defendants’ Motion for Summary Judgment (Doc. No. 21) is DENIED as more fully set forth above.
IT IS FURTHER ORDERED that the Motion to Adjourn Scheduling Order Dates (Doc. No. 23) is MOOT.
IT IS FURTHER ORDERED that the Motion to Strike Portions of Defendants’ Summary Judgment Motion or Submit Evidence (Doc. No. 30) is DENIED.
IT IS FURTHER ORDERED that the Motion for Sanctions (Doc. No. 39) is GRANTED IN PART and DENIED IN PART. The second set of photographs is disallowed to be used as evidence in this case. The request for dismissal as sanctions is denied.
IT IS FURTHER ORDERED that a Final Pretrial Conference date is scheduled for Monday, June 10, 2013, 2:30 p.m. The parties must submit a proposed Joint Final Pretrial Order by June 3, 2013 in the form set forth in Local Rule 16.2. All parties with authority to settle must appear at the conference. The Magistrate Judge may reschedule the cancelled facilitation and submit a notice to the Court by June 3, 2013 once facilitation is complete.
IT IS FURTHER ORDERED that Trial is scheduled for Tuesday, July 9, 2013, 9:00 a.m.
Notes:
[1] The parties are referred to E.D. Mich. LR 7.1 and CM/ECF Pol. & Proc. R5 and R18 governing filing of motions, briefs and exhibits. See, http://www.mied.usourts.gov.
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It sucks when you lose a case and in a separate case, the decision in the first case you lost is used against you in the second case.
Posted: May 6, 2019 Filed under: Assumption of the Risk, Delaware, Mountain Biking, Release (pre-injury contract not to sue) | Tags: activities, allegations, applies, Assumption of risk, Bike Race, Business Invitee, courts, defendants', Dirt Bike, Dirt Bike Race, doctrine of primary assumption, Doctrine of Primary Assumption of the Risk, Genuine Issue of Material Fact, Gross negligence, Inherent Risk, inspect, Mountain Bike Race, Off Road, Off Road Dirt Bike, Off Road Dirt Bike Race, participants, permission, Primary Assumption of Risk, recklessness, Release, release of liability, relieve, restricted area, secondary assumption, Secondary Assumption of Risk, Sport, sporting event, sports-related, Summary judgment, waiver form Leave a commentBlue Diamond MX Park was sued by a participant in a race for the injuries he received during a race. The release he signed and assumption of the risk did not stop his claim for recklessness.
Citation: Barth v. Blue Diamond, LLC (d/b/a Blue Diamond MX Park), 2017 Del. Super. LEXIS 615, 2017 WL 5900949
State: Delaware, Superior Court of Delaware
Plaintiff: Scott Barth
Defendant: Blue Diamond, LLC (d/b/a Blue Diamond MX Park), a Delaware corporation, The East Coast Enduro Association, Inc., a New Jersey corporation, and Delaware Enduro Riders, Inc., a Delaware corporation
Plaintiff Claims: negligent and reckless failure to properly mark the race’s course caused his injuries
Defendant Defenses: Release and Primary Assumption of the Risk
Holding: for the Plaintiff
Year: 2017
Summary
This case is another mountain-bike race case with the same defendant as an earlier case in Delaware. Delaware allows a release to be used; however, in both of these cases, the appellate court worked hard to find a way around the release.
Facts
The only facts in the case are: “The plaintiff, Scott Barth, suffered serious injuries during an off-road dirt-bike race.”
Analysis: making sense of the law based on these facts.
The court started its analysis looking at Primary Assumption of the Risk.
In Delaware, “primary assumption of the risk is implicated when the plaintiff expressly consents ‘to relieve the defendant of an obligation of conduct toward him, and to take his chances of injury from a known risk arising from what the defendant is to do or leave undone.'”[7] When primary assumption of risk exists, “the defendant is relieved of legal duty to the plaintiff; and being under no legal duty, he or she cannot be charged with negligence.”
The court then looked at the release.
The plaintiff argued the release was not valid because it lacked consideration, and the release does not release the defendant from liability for recklessness.
To be enforceable under Delaware law, releases of liability “must be crystal clear and unequivocal” and “unambiguous, not unconscionable, and not against public policy.” Barth does not (and cannot) argue that the waiver form at issue does not meet this standard. In Lynam v. Blue Diamond LLC, this Court found a virtually identical release form valid.
The plaintiff argued the release was not valid based on lack of consideration. The lack of consideration was based on the fact he did not walk or ride the course in advance. Another case in Delaware had held the release was invalid because the riders were required to walk the course and never given the opportunity to do so.
In this case the riders were told, they could walk or ride the course. The plaintiff never did. Not taking advantage of the offer is not a case for claiming the release is invalid.
Barth cannot claim he was denied permission if he never asked for it. Additionally, the “failure to apprise himself of, or otherwise understand the language of a release that he is asked to sign is insufficient as a matter of law to invalidate the release.” The Court finds that Barth’s own failure to perform a permissive part of the agreement does not make the waiver invalid.
The court then switched back to the issue of recklessness and held the release could not preclude a claim for recklessness. “The Court finds that the waiver form releases the defendants from their liability for negligence, but not for recklessness.”
The court then went back to primary assumption of the risk and found that primary assumption of the risk does not bar a claim for recklessness.
Primary assumption of the risk in Delaware applies to sports-related activities that involve physical skill and pose a significant risk of injury to participants. Primary assumption of the risk in can be only with specific activities.
Delaware cases have noted that primary assumption of risk commonly applies to “sports-related activities that ‘involv[e] physical skill and challenges posing significant risk of injury to participants in such activities, and as to which the absence of such a defense would chill vigorous participation in the sporting activity and have a deleterious effect on the nature of the sport as a whole.'”
So far, Delaware has found that primary assumption of the risk applies to:
(1) being a spectator at a sporting event such as a baseball or hockey game or tennis match where projectiles may be launched into the audience; (2) participating in a contact sporting event; (3) bungee jumping or bungee bouncing; (4) operating a jet-ski, or engaging in other noncompetitive water sports such as water-skiing, tubing, or white-water rafting; (5) drag racing; and (6) skydiving.[
Relying on a California case, the court looked at the requirements for an activity. That analysis must cover the nature of the activity and the relationship between the parties.
An analysis of the nature of the activities the courts must consider:
what conditions, conduct or risks that might be viewed as dangerous in other contexts are so integral to or inherent in the activity itself that imposing a duty of care would either require that an essential aspect of the sport be abandoned, or else discourage vigorous participation therein. In such cases, defendants generally do not have a duty to protect a plaintiff from the inherent risks of the sport, or to eliminate all risk from the sport.
In reviewing the relationship of the parties, the court must look at:
the general duty of due care to avoid injury to others does not apply to coparticipants in sporting activities with respect to conditions and conduct that might otherwise be viewed as dangerous but upon examination are seen to be an integral part of the sport itself.
In Delaware, secondary assumption of the risk was incorporated into Delaware’s contributory negligence statute and is no longer available as a complete defense. Secondary Assumption of the Risk occurs when “the plaintiffs conduct in encountering a known risk may itself be unreasonable, because the danger is out of proportion to the advantage which he is seeking to obtain.”
The court then found that primary assumption of the risk is still a valid defense to negligence. The court then found that the release the plaintiff signed was the same as primary assumption of the risk.
The Court finds that implied primary assumption of risk is a valid affirmative defense to negligence. Because Barth signed a valid release of liability for Defendants’ negligence, the remaining issue in this case is whether implied primary assumption of risk is a valid affirmative defense to allegations of recklessness as well.
As in other states, the defense provided by primary assumption of the risk is based on the duty of the defendants not to increase the harm beyond what is inherent in the sport.
Though defendants do not owe a duty to protect a plaintiff from the risks inherent in an activity to which the doctrine of implied primary assumption of risk applies, “defendants do have a duty not to increase the risk of harm beyond what is inherent in the sport through intentional or reckless behavior that is completely outside the range of the ordinary activity in the sport.”
The issue of recklessness came back, and the court seemed to combine that issue as one where the defendant increased the risks to the plaintiff.
Here, the Court has ruled as a matter of law that a genuine issue of material fact exists as to whether Defendants recklessly marked the course with inadequate signage. The Court finds there is a genuine issue of material fact as to whether the Defendants committed reckless conduct, which increased the race’s risk of harm. Further, the Court holds that the doctrine of implied primary assumption of risk does not insulate a tortfeasor from liability for intentional or reckless conduct.
The case continued with an unknown final outcome.
So Now What?
Because of these two cases, I think first I would require all participants in the race to ride or walk the course. This would reinforce the assumption of risk argument. I would then write the release to point out the fact the rider had seen the course and had no problems with it.
The analysis of primary assumption of risk in this and many other cases creates a gap in the defenses of many activities that can only be covered by a release, even in Delaware. Primary Assumption of the risk covers the inherent risks of the activity. Defendants are liable for any increase in the risk to the plaintiffs. There is an ocean of risks that a court can find that are not inherent in the activities that are not really under the control or something the defendant can do to decrease and/or is something the defendant has not done that increased the risks.
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Jim Moss is an attorney specializing in the legal issues of the outdoor recreation community. He represents guides, guide services, outfitters both as businesses and individuals and the products they use for their business. He has defended Mt. Everest guide services, summer camps, climbing rope manufacturers; avalanche beacon manufactures and many more manufacturers and outdoor industries. Contact Jim at Jim@Rec-Law.us |
Jim is the author or co-author of six books about the legal issues in the outdoor recreation world; the latest is Outdoor Recreation Insurance, Risk Management and Law.
To see Jim’s complete bio go here and to see his CV you can find it here. To find out the purpose of this website go here.
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Lee, et al., v Brooklyn Boulders, LLC, 156 A.D.3d 689; 67 N.Y.S.3d 67; 2017 N.Y. App. Div. LEXIS 8723; 2017 NY Slip Op 08660
Posted: May 1, 2019 Filed under: Assumption of the Risk, Climbing Wall, Legal Case, New York, Release (pre-injury contract not to sue) | Tags: assumption of the risk, Climbing Gym, Climbing Wall, cross-appeal, gap, Inherent Risks, inter alia, leave to amend, Mats, personal injuries, Prima facie, Punitive damages, recover damages, recreational, Release, Rock climbing, Sport, Summary judgment, Velcro Leave a commentLee, et al., v Brooklyn Boulders, LLC, 156 A.D.3d 689; 67 N.Y.S.3d 67; 2017 N.Y. App. Div. LEXIS 8723; 2017 NY Slip Op 08660
Jennifer Lee, et al., respondents-appellants, v Brooklyn Boulders, LLC, appellant-respondent. (Index No. 503080/13)
2016-04353
SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT
156 A.D.3d 689; 67 N.Y.S.3d 67; 2017 N.Y. App. Div. LEXIS 8723; 2017 NY Slip Op 08660
December 13, 2017, Decided
NOTICE:
THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION. THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
CORE TERMS: leave to amend, punitive damages, sport, gap, recover damages, personal injuries, summary judgment, rock climbing, inherent risks, prima facie, cross-appeal, recreational, engaging, mats, inter alia
COUNSEL: [***1] Lewis Brisbois Bisgaard & Smith, LLP, New York, NY (Nicholas P. Hurzeler of counsel), for appellant-respondent.
Carman, Callahan & Ingham, LLP, Farmingdale, NY (James M. Carman and Anne P. O’Brien of counsel), for respondents-appellants.
JUDGES: WILLIAM F. MASTRO, J.P., CHERYL E. CHAMBERS, HECTOR D. LASALLE, VALERIE BRATHWAITE NELSON, JJ. MASTRO, J.P., CHAMBERS, LASALLE and BRATHWAITE NELSON, JJ., concur.
OPINION
[**68] [*689] DECISION & ORDER
In an action to recover damages for personal injuries, etc., the defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Toussaint, J.), dated April 20, 2016, as denied its motion for summary judgment dismissing the complaint, and the plaintiffs cross-appeal, as limited by their brief, from so much of the same order as denied their cross motion pursuant to CPLR 3025(b) for leave to amend the complaint to add a demand for punitive damages.
ORDERED that the order is affirmed insofar as appealed and cross-appealed from, without costs or disbursements.
The plaintiff Jennifer Lee (hereinafter the injured plaintiff) allegedly was injured at the defendant’s rock climbing facility when she dropped down from a climbing wall and her foot landed in a gap [***2] between two mats. According to the injured plaintiff, the gap was covered by a piece of velcro.
[**69] [*690] The plaintiffs commenced this action to recover damages for personal injuries, etc. The defendant moved for summary judgment dismissing the complaint, and the plaintiffs, inter alia, cross-moved for leave to amend the complaint to add a demand for punitive damages. The Supreme Court, inter alia, denied the motion and the cross motion. The defendant appeals and the plaintiffs cross-appeal.
Contrary to the defendant’s contention, the release of liability that the injured plaintiff signed is void under General Obligations Law § 5-326 because the defendant’s facility is recreational in nature (see Serin v Soulcycle Holdings, LLC, 145 AD3d 468, 469, 41 N.Y.S.3d 714; Vanderbrook v Emerald Springs Ranch, 109 AD3d 1113, 1115, 971 N.Y.S.2d 754; Debell v Wellbridge Club Mgt., Inc., 40 AD3d 248, 249, 835 N.Y.S.2d 170; Miranda v Hampton Auto Raceway, 130 AD2d 558, 558, 515 N.Y.S.2d 291). Therefore, the release does not bar the plaintiffs’ claims.
“Relieving an owner or operator of a sporting venue from liability for inherent risks of engaging in a sport is justified when a consenting participant is aware of the risks; has an appreciation of the nature of the risks; and voluntarily assumes the risks” (Morgan v State of New York, 90 NY2d 471, 484, 685 N.E.2d 202, 662 N.Y.S.2d 421; see Koubek v Denis, 21 AD3d 453, 799 N.Y.S.2d 746). “If the risks of the activity are fully comprehended or perfectly obvious, plaintiff has consented to them and defendant has performed its duty” (Turcotte v Fell, 68 NY2d 432, 439, 502 N.E.2d 964, 510 N.Y.S.2d 49; see Morgan v State of New York, 90 NY2d at 484; Joseph v New York Racing Assn., 28 AD3d 105, 108, 809 N.Y.S.2d 526). Moreover, “by engaging in a sport or recreational [***3] activity, a participant consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation” (Morgan v State of New York, 90 NY2d at 484; see Simone v Doscas, 142 AD3d 494, 494, 35 N.Y.S.3d 720).
Here, the defendant failed to establish, prima facie, that the doctrine of primary assumption of risk applies. The defendant submitted the injured plaintiff’s deposition testimony, which reveals triable issues of fact as to whether the gap in the mats constituted a concealed risk and whether the injured plaintiff’s accident involved an inherent risk of rock climbing (see Siegel v City of New York, 90 N.Y.2d 471, 488, 685 N.E.2d 202, 662 N.Y.S.2d 421; Georgiades v Nassau Equestrian Ctr. at Old Mill, Inc., 134 AD3d 887, 889, 22 N.Y.S.3d 467; Dann v Family Sports Complex, Inc., 123 AD3d 1177, 1178, 997 N.Y.S.2d 836; Segal v St. John’s Univ., 69 AD3d 702, 704, 893 N.Y.S.2d 221; Demelio v Playmakers, Inc., 63 AD3d 777, 778, 880 N.Y.S.2d 710). Since the defendant failed to establish its prima facie entitlement to judgment as a matter of law, its motion was properly denied, [*691] regardless of the sufficiency of the opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853, 476 N.E.2d 642, 487 N.Y.S.2d 316).
The Supreme Court providently exercised its discretion in denying the plaintiffs’ cross motion for leave to amend the complaint to add a demand for punitive damages (see Jones v LeFrance Leasing Ltd. Partnership, 127 AD3d 819, 7 N.Y.S.3d 352; Hylan Elec. Contr., Inc. v MasTec N. Am., Inc., 74 AD3d 1148, 903 N.Y.S.2d 528; Kinzer v Bederman, 59 AD3d 496, 873 N.Y.S.2d 692).
[**70] MASTRO, J.P., CHAMBERS, LASALLE and BRATHWAITE NELSON, JJ., concur.
Hightower-Henne v. Gelman, 2012 U.S. Dist. LEXIS 4514
Posted: May 1, 2019 Filed under: Colorado, Contract, Legal Case, Release (pre-injury contract not to sue) | Tags: admissible, attorneys' fees, collection, collector, credit card, demand letters, discovery, disputed, Email, engaging, entity, genuine, law firm, machine, missing, Mountain Law Group, nonmoving party, opposing, owed, practice of law, preface, principal purpose, regularity, regularly, Rental, rental agree-ment, ride, signature, Snowmobile, Summary judgment Leave a commentTo Read an Analysis of this decision see: You can collect for damaged gear you rented to customers if your agreements are correct. This snowmobile outfitter recovered $27,000 for $220.11 in damages.
Hightower-Henne v. Gelman, 2012 U.S. Dist. LEXIS 4514
Tracy L. Hightower-Henne, and Thomas Henne, Plaintiffs, v. Leonard M. Gelman, Defendant.
Civil Action No. 11-cv-01114-KMT-BNB
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
2012 U.S. Dist. LEXIS 4514
January 12, 2012, Decided
January 12, 2012, Filed
CORE TERMS: collection, collector, snowmobile, summary judgment, discovery, credit card, rental, Mountain Law Group, demand letters, email, entity, law firm, preface, missing, nonmoving party, principal purpose, regularity, regularly, disputed, opposing, genuine, rental agreement, signature, machine, ride, admissible, engaging, owed, practice of law, attorney’s fees
COUNSEL: [*1] For Tracy L. Hightower-Henne, Thomas J. Henne, Plaintiffs: Daniel Teodoru, Erin Colleen Hunter, West Brown Huntley & Hunter, P.C., Breckenridge, CO.
For Leonard M. Gelman, Defendant: Rusty David Miller, Thomas Neville Alfrey, Treece Alfrey Musat, P.C., Denver, CO.
JUDGES: Kathleen M. Tafoya, United States Magistrate Judge.
OPINION BY: Kathleen M. Tafoya
OPINION
ORDER
This matter is before the court on Defendant Leonard M. Gelman’s Motion for Summary Judgment [Doc. No. 17] (“Mot.”) filed August 12, 2011. Plaintiffs, Tracy Hightower-Henne and Thomas Henne (collectively “the Hennes”), responded on September 14, 2011 [Doc. No. 23] (“Resp.”) and the defendant filed a Reply on October 3, 2011 [Doc. No. 25]. Also considered is Plaintiffs’ “Motion to File Sur-Reply” [Doc. No. 26], which is denied.1
1 Neither the Federal Rules of Civil Procedure nor the Local Rules of Practice in the District of Colorado provide for the filing of a surreply. Additionally, the court’s review of the proposed surreply reveals it is nothing more than an attempted unauthorized additional bite at the proverbial apple and adds nothing of merit to the summary judgment analysis.
Background
On February 8, 2010, Nebraska residents Tracy L. Hightower-Henne [*2] and her husband Thomas Henne joined a small group of friends and family for a snowmobile ride in Vail, Colorado. Mrs. Hightower-Henne, a Nebraska attorney, rented two snowmobiles from Colorado Backcountry Rentals (“CBR”) for herself and her husband, signing the rental agreement for the two machines and declining the offered insurance to cover loss or damage to the machines while in their possession. (Mot., Ex. H, Judgment Order of County Court Judge Wayne Patton, April 21, 2011, hereinafter “Judgment Order” at 1.)2 While at the CBR’s office, the Hennes were shown a video depicting proper operation of snowmobiles in general and were also verbally advised on snowmobile use by an employee of CBR. (Id.) Plaintiffs, a short while thereafter, met another employee of CBR, Mr. Weber, at Vail Pass and were given possession of the snowmobiles after an opportunity to inspect the machines. (Id. at 2.) Plaintiffs utilized their entire allotted time on the snowmobiles and brought them back to Mr. Weber as planned. Mr. Weber immediately noticed that the snowmobile ridden by Mr. Henne was missing its air box cover and faring, described as a large blue shield on the front of the snowmobile, entirely [*3] visible to any driver. (Id. at 3.) At the he returned the snowmobile, Mr. Henne told Mr. Weber that the parts had fallen off approximately two hours into the ride and that he had tried to carry the faring back, but, as he was unable to do so, he left the part on the trail.3 (Id. at 2.) Mr. Henne signed a form acknowledging the missing part(s) and produced his driver’s license and a credit card with full intent that charges to fix the snowmobile would be levied against that card. Mr. Henne signed a blank credit card slip, which the parties all understood would be filled-in once the damage could be definitively ascertained.4 (Id.) Although CBR, pursuant to the rental agreement signed by Mrs. Hightower-Henne, was entitled to charge the Hennes for loss of rentals for the snowmobile while it was being repaired, CBR waived that fee5 and charged Mr. Henne oa total of only $220.11. (Mot., Ex. B.)
2 As will be discussed in more detail herein, one of the rented snowmobiles suffered damage while in the possession of Mr. Henne. Although agreeing to pay for the damage initially, Mr. Henne later disputed the charges levied by CBR against his credit card, resulting in a collection lawsuit brought by [*4] CBR against Mr. and Mrs. Henne in Summit County Court, Case Number 10 C 255 ). (See Mot., Ex. G; hereinafter, the “Summit County case.”) This court takes the underlying facts from the Judgment Order of Hon. Wayne Patton in the Summit County Case as Judge Patton presided over a trial and therefore had the best opportunity to assess the witnesses, including their credibility and analyze the exhibits. The defendant in this case, Leonard M. Gelman, was the attorney for CBR in the Summit County case.
3 This story changed at trial in the Summit County case, where Mr. Henne reported that the parts fell off the machine about 5-10 minutes into the ride. Mr. Henne also testified that he did not know he was missing a part – he claimed a group of strangers told him that his snowmobile was missing a part and he thereafter retraced his route to try to find the piece but could not find it. Judge Patton found that “Mr. Henne’s testimony does not make sense to the court.” (Judgment Order at 3.) The court found that the evidence indicated the parts came off during the ride and that since the clips that held the part on were broken and the “intake silencer” was cracked, Judge Patton indicated, “The court [*5] does not believe that the fairing just fell off.” (Id.)
4 Mr. Henne’s proffered credit card was for a different account that Mrs. Hightower-Henne had used to rent the snowmobiles.
5 CBR’s notation on the Estimated Damages form states, “Will not charge customer for the 2 days loss rents as good will.” (Mot., Ex. B.)
Upon their return to Nebraska, however, Mr. and Mrs. Henne apparently decided they did not want to pay for the damage to the snowmobile, even with the waiver of the rental loss, and contested the charge to Mr. Henne’s credit card resulting in a reversal of the charge by the credit card issuer. Further, the Hennes leveled criminal forgery accusations against CBR’s employee with the Frisco, Colorado Police Department (id. at 4), alleging that the acknowledgment of damage form and the credit card slip were not signed by Mr. Henne. The police department investigated, but no charges were filed.
Mr. Henne’s ultimate cancellation of his former acquiescence to payment caused CBR to contact their corporate lawyer, Defendant Gelman, and ask that he attempt to obtain payment from the Hennes, authorizing a law suit if initial requests for payment failed. Obviously, CBR was no longer willing [*6] to waive the fee for loss of rental which was part of the contract Mrs. Hightower-Henne signed. (Id. at 2.)
At trial in the Summit County case, Mr. and Mrs. Henne maintained that Mr. Henne’s signature on the damage estimate and the credit card slip were forgeries. (Id. at 4.) The court found that Mr. Weber, CBR’s employee who witnessed Mr. Henne sign the documents, was a credible witness and found Mr. Henne’s claim that he had not signed the documents was not credible. (Id.) The court also found that there was no incentive whatsoever for anyone to have forged Mr. Henne’s signature on anything since “[CBR] already had Ms. Hightower-Henne’s credit card information and authorization so even if Mr. Henne had refused to sign the disputed documents it had recourse without having to resort to subterfuge.” (Id.)
After deciding in favor of CBR on the liability of Mr. and Mrs. Henne for the damage to the snowmobile in the total amount of $653.60, Judge Patton considered the issue of attorney’s fees and costs incurred in that proceeding. Finding that the original rental documents signed by Mrs. Hightower-Henne contained a prevailing party award of attorney fees provision, the court awarded CBR [*7] $25,052.50 in attorney’s fees against Mrs. Hightower-Henne plus $1,737.92 in costs.6 The court stated that even though the attorney fee award was substantial considering the amount of the original debt, the time expended by CBR’s counsel was greatly exacerbated by Mrs. Hightower-Henne’s “motions and threats” and that it was the Hennes who “created the need for [considerable] hours by their actions in filing baseless criminal complaints, filing motions to continue the trial and by seeking to have phone testimony of several witnesses who had no knowledge of what took place while Defendant’s (sic) had possession of the snowmobiles.” (Mot., Ex. I, June 22, 2011 Order of Hon. Wayne Patton, hereinafter “Atty. Fee Order” at 3.) The court also found that “although this was a case akin to a small claims case, Mrs. Hightower-Henne defended the case as if it were complex litigation.”7 (Id. at 1.) Judge Patton stated, with respect to the counterclaim filed by the Hennes, that “[a]lthough Mrs. Hightower-Henne did not pursue that claim at trial it shows the lengths she was willing to go to avoid payment of what was a fairly small claim.” (Id. at 1.)
6 Costs were awarded against both Mr. and Mrs. Henne [*8] jointly and severally.
7 In December 2010, the Hennes hired outside counsel to defend them in the county court action. (Id. at 4.)
As a result of groundless criminal claims, baseless counterclaims, perjured testimony and over-zealous defense, instead of owing $220.11 for the snowmobile’s missing part, after the dust settled on the Summit County case, the Hennes became responsible for a judgment in excess of $27,000.00.
In a prodigiously perfect example of throwing good money after bad, the Hennes now continue to prosecute this federal action against the lawyer representing CBR in the Summit County case, alleging violations of the federal Fair Debt Collection Practices Act (“FDCPA”).8 Unfortunately, even though the issue was raised at some point in the county court case, (see id. at 3, “Mrs. Hightower-Henne also made allegations that Plaintiff was violating fair debt collection laws”), these particular allegations were not resolved by the county court. Therefore, this court is now compelled to reluctantly follow the Hennes down this white rabbit’s hole to resolve the federal case.
8 This case was originally filed against CBR’s lawyer by the Hennes in Summit County on March 31, 2011, suspiciously [*9] a mere one week before commencing trial on the underlying case before Judge Patton. Defendant Gelman removed the case to federal court post-trial on April 27, 2011, one week subsequent to Judge Patton’s ruling against the Hennes. Between April 27, 2011 and August 12, 2011, the Hennes could have revisited the wisdom of continuing with this case had they been so inclined. However, the Hennes have not sought to even amend their Complaint in this matter, even though the findings call into question many of the arguments embodied in the federal complaint. (See, e.g., Compl. ¶ 26.)
Analysis
A. Legal Standard
Summary judgment is appropriate if “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The moving party bears the initial burden of showing an absence of evidence to support the nonmoving party’s case. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). “Once the moving party meets this burden, the burden shifts to the nonmoving party to demonstrate a genuine issue for trial on a material matter.” Concrete Works, Inc. v. City & County of Denver, 36 F.3d 1513, 1518 (10th Cir. 1994) (citing [*10] Celotex, 477 U.S. at 325). The nonmoving party may not rest solely on the allegations in the pleadings, but must instead designate “specific facts showing that there is a genuine issue for trial.” Celotex, 477 U.S. at 324; see also Fed. R. Civ. P. 56(c). A disputed fact is “material” if “under the substantive law it is essential to the proper disposition of the claim.” Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir.1998) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986)). A dispute is “genuine” if the evidence is such that it might lead a reasonable jury to return a verdict for the nonmoving party. Thomas v. Metropolitan Life Ins. Co., 631 F.3d 1153, 1160 (10th Cir. 2011) (citing Anderson, 477 U.S. at 248).
When ruling on a motion for summary judgment, a court may consider only admissible evidence. See Johnson v. Weld County, Colo., 594 F.3d 1202, 1209-10 (10th Cir. 2010). The factual record and reasonable inferences therefrom are viewed in the light most favorable to the party opposing summary judgment. Concrete Works, 36 F.3d at 1517. At the summary judgment stage of litigation, a plaintiff’s version of the facts must find support in the record. Thomson v. Salt Lake Cnty., 584 F.3d 1304, 1312 (10th Cir. 2009). [*11] “When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.” Scott v. Harris, 550 U.S. 372, 380, 127 S. Ct. 1769, 167 L. Ed. 2d 686 (2007); Thomson, 584 F.3d at 1312.
B. Request for Additional Discovery
As an initial matter, Plaintiffs request the court grant them further discovery in order to fully explore the matters raised by Defendant Gelman’s affidavit, attached to the Motion. [Doc. No. 17-1, hereinafter “Gelman Affidavit.”]
The party opposing summary judgment and who requests additional discovery must specify by affidavit the reasons why it cannot present facts essential to its opposition to a motion for summary judgment by demonstrating (1) the probable facts are not available, (2) why those facts cannot be presented currently, (3) what steps have been taken to obtain these facts, and (4) how additional time will enable the party to obtain those facts and rebut the motion for summary judgment. Valley Forge Ins. Co. v. Healthcare Mgmt. Partners, Ltd., 616 F.3d 1086, 1096 (10th Cir. 2010)(internal quotations omitted); Been v. O.K. Indust., Inc., 495 F.3d 1217, 1235 (10th Cir. 2007)(The [*12] protection under Rule 56(d) “arises only if the nonmoving party files an affidavit explaining why he or she cannot present facts to oppose the motion.”)
As noted above, the instant motion and the Gelman Affidavit were filed on August 12, 2011. The discovery cut-off date in this case was not until October 3, 2011. (Scheduling Order, [Doc. No. 10] at 6.) Therefore, written discovery could have been timely served any time prior to August 31, 2011. When Defendant filed his motion and the affidavit, Plaintiffs still had nineteen days to compose and serve interrogatories and requests for production of documents in order to obtain substantiation – or lack thereof – of the matters contained in the Gelman Affidavit. Additionally, Plaintiffs had 49 days remaining within which to notice and schedule the deposition of Mr. Gelman, or any other person. Apparently, Plaintiffs did not avail themselves of these opportunities, or, for that matter, any other attempt to obtain discovery during the entirety of the discovery period. There is no reason for the court to now accredit Plaintiffs’ professed need for discovery at this late date when they did not undertake any discovery within the appropriate time [*13] frame even though the issues were then squarely before them. The request for further discovery is denied.
C. Defendant Gelman’s Status as Debt Collector
The court has been presented with the following: the testimony through affidavit of Leonard M. Gelman; the testimony through affidavit of Tracy Hightower (Resp., Ex. 3 [Doc. No. 23-3] “Hightower Affidavit”); the Judgment Order and the Atty. Fee Order of Judge Wayne Patton referenced infra; the Complaint filed in the Summit County case – case number 10 C 255 (Mot., Ex. G); a letter from Lee Gelman to Thomas Henne dated April 1, 2010 (Mot., Ex. D; Resp., Ex. 1, “Demand Letter”); a letter to Lee Gelman from Tracy L. Hightower-Henne dated April 5, 2010 (Mot., Ex. E); an email exchange between Lee Gelman and Tracy Hightower dated April 13, 2010 (Resp., Ex. 4); an undated internet home page of Mountain Law Group (Mot., Ex. F); a document purporting to be a “Colorado Court Database” listing seven cases involving as plaintiff either Summit Interests Inc., Back Country Rentals, or Colorado Backcountry Rentals for the time period March 25, 2009 through November 18, 2010 (Resp., Ex. 7); three letters signed by “Lee Gelman, Esq.” drafted on letterhead [*14] of a law firm named Dunn Keyes Gelman & Pummell with origination dates of March 10, 2008, March 19, 2009 and December 19, 2008 (Resp., Ex. 8); and, the snowmobile rental agreements and other documents relevant to the Summit County case (Mot., Exs. A – C).
The FDCPA regulates the practices of “debt collectors.” See 15 U.S.C. § 1692(e). If a person or entity is not a debt collector, the Act does not provide any cause of action against them. Plaintiffs’ Complaint alleges only violations of the FDCPA (See Compl. [Doc. No. 2]) by Defendant Gelman; therefore, if Defendant is not a debt collector, Plaintiffs’ action must fail.
The FDCPA contains both a definition of “debt collector” and language describing certain categories of persons and entities excluded from the definition.9 Thus, an alleged debt collector may escape liability either by failing to qualify as a “debt collector” under the initial definitional language, or by falling within one of the exclusions. The plaintiff in an FDCPA claim bears the burden of proving the defendant’s debt collector status. See Zimmerman v. The CIT Group, Inc., Case No. 08-cv-00246-ZLW-KMT, 2008 U.S. Dist. LEXIS 108473, 2008 WL 5786438, at *9 (D. Colo. October 6, 2008) (citing Goldstein v. Hutton, Ingram, Yuzek, Gainen, Carroll & Bertolotti, 374 F.3d 56, 60 (2d. Cir.2004).
9 None [*15] of these enumerated exceptions are alleged to be applicable in this case.
The Act defines “debt collector” as:
[A]ny person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another.
15 U.S.C. § 1692a(6). See Allen v. Nelnet, Inc., Case No. 06-cv-00586-REB-PAC, 2007 WL 2786432, at *8-9 (D. Colo. Sept. 24, 2007). The Supreme Court has made it clear that the FDCPA applies to attorneys “regularly” engaging in debt collection activity, including such activity in the nature of litigation. Heintz v. Jenkins, 514 U.S. 291, 299, 115 S. Ct. 1489, 131 L. Ed. 2d 395 (1995). The FDCPA establishes two alternative predicates for “debt collector” status – engaging in such activity as the “principal purpose” of an entity’s business and/or “regularly” engaging in such collection activity. 15 U.S.C. § 1692a(6). It is clear from the evidence that debt collection is not Defendant Gelman’s or his law firm’s principal purpose, nor is debt collection the principal purpose of non-defendant CBR. Goldstein, 374 F.3d at 60-61. Therefore [*16] the court must examine the issue from the regularity perspective. The Goldstein court directed
Most important in the analysis is the assessment of facts closely relating to ordinary concepts of regularity, including (1) the absolute number of debt collection communications issued, and/or collection-related litigation matters pursued, over the relevant period(s), (2) the frequency of such communications and/or litigation activity, including whether any patterns of such activity are discernable, (3) whether the entity has personnel specifically assigned to work on debt collection activity, (4) whether the entity has systems or contractors in place to facilitate such activity, and (5) whether the activity is undertaken in connection with ongoing client relationships with entities that have retained the lawyer or firm to assist in the collection of outstanding consumer debt obligations. Facts relating to the role debt collection work plays in the practice as a whole should also be considered to the extent they bear on the question of regularity of debt collection activity . . . . Whether the law practice seeks debt collection business by marketing itself as having debt collection expertise [*17] may also be an indicator of the regularity of collection as a part of the practice.
Id. at 62-63.
1. Defendant Gelman’s Practice of Law at Mountain Law Group
The testimony of Mr. Gelman provided through his affidavit is considered by the court to be unrefuted since Plaintiffs failed to avail themselves of any discovery which might have provided grounds for contest.
After recounting his background as an environmental lawyer for the Department of Justice, Mr. Gelman describes his practice of law with the Mountain Law Group as an attorney and through the Colorado Office of Dispute Resolution as a mediator. (Gelman Aff. ¶¶ 1, 3.) Mr. Gelman also acts as the manager of his wife’s medical practice. (Id. ¶ 5.) Because of his responsibilities as a mediator and an administrator, Mr. Gelman only spends approximately 25% of his working time engaged in the practice of law through Mountain Law Group. (Id. ¶ 8.) If one considers a normal business day to be nine hours, Mr. Gelman then spends approximately 2.25 hours a day practicing law at the Mountain Law Group. Of that time at the law firm, Mr. Gelman devotes approximately 30% to “Business/Contracts,” the only area of his practice which generates any [*18] debt collection activity. (Id. ¶¶ 8, 22.) Extrapolating, then, Mr. Gelman spends approximately .67 of an hour, or approximately 45 minutes, out of each day pursuing business matters of all kinds for his clients.
One of Mr. Gelman’s business clients is CBR to which he provides legal assistance “with all of CBR’s corporate needs . . . [including] a) contract drafting and consultation on rental agreements, waivers, and other forms; and b) representation concerning regulatory and enforcement matters between the U.S. Forest Service and CBR.” (Id. ¶ 19.) Of all the clients of the Mountain Law Group’s seven lawyers, CBR is the only one who generates any debt collection work at all. (Id. ¶¶ 7, 22, 23.) Additionally, of the seven lawyers, Mr. Gelman, through his client CBR, is the only lawyer to have ever worked on, in any capacity, any debt collection matter.10 (Id.)
10 As noted in the Hightower Affidavit, it is not disputed that, as part of CBR’s employment of Mr. Gelman as their corporate attorney, they requested that he attempt to collect the Henne’s debt.. (Id. ¶ 2.)
Over a forty (40) month period, Mr. Gelman states that he sent only 18 demand letters on behalf of CBR to renters of snowmobiles [*19] who did not pay for damages they caused to CBR’s equipment. (Id. ¶ 20.) This averages out to one demand letter every 2.5 months.11
11 Of course, this does not mean that the demand letters are actually sent on such a regular basis.
In connection with Mr. Gelman’s practice of law with the Mountain Law Group, the court reviewed what is purportedly the law firm’s internet home page. (Mot., Ex. F.) This submission contains no date or retrieval or publication. Therefore, the court can give it little weight. However, as part of the analysis, the court notes that at the time of the internet display – whenever that was – the Mountain Law Group’s home page did not include any advertisement suggesting they provided debt collection services or as had any expertise in the collection of debt.
Mr. Gelman otherwise states that the Mountain Law Group neither owns nor uses any specialized computer software designed to facilitate debt collection activity. (Gelman Aff. ¶ 12.) Further, his unrefuted testimony is that the firm employs no paralegal or other staff to assist in debt collection for the firm. (Id. ¶ 5.)
Plaintiffs, however, assert that Mr. Gelman regularly and frequently pursues debt collection matters [*20] on behalf of CBR, pointing the court’s attention to a document entitled “Colorado Court Database” (“CCD”). The CCD may indicate that CBR or Summit Interests, Inc.12 was involved in seven13 case filings in 2009 and 2010. (Resp., Ex. 7.) None of the cases contained on the CCD indicate whether or not Defendant Gelman represented the named entity, nor do any of the cases identify the other parties. The CCD is in the form of a table with columnar headings, “Name,” “Case,” “Filed,” “Status,” “Party” and “County.” Under the column “Party,” six of the cases indicate “Money” and one indicates “Breach of Contract”; both of these terms are undefined. The court does not begin to understand how “Breach of Contract” for instance, can be a “party ” to a lawsuit. The court is completely unable to ascertain the relevance of this document or what bearing it has on whether or not Mr. Gelman is a debt collector since it does not reference Mr. Gelman or debt collection. The CCD, unintelligible as it stands, is therefore inadmissible and will not be considered for any purpose in the summary judgment proceeding. See Johnson v. Weld County, Colo., 594 F.3d at 1209-10.
12 In the April 1, 2010 demand letter from [*21] Mr. Gelman to Mr. Henne, Mr. Gelman professes to represent “Summit Interests, Inc., d/b/a/ Colorado Backcountry Rentals.” (Resp, [Doc. No. 23-1].)
13 The documents references more than ten items, but several have the same case number.
2. Mr. Gelman’s Debt Collection Methodology
This case involves essentially two communications from Mr. Gelman: the April 1, 2010 letter to Mr. Henne and the April 13, 2010 email from Mr. Gelman to Mrs. Hightower-Henne following her letter professing to represent Mr. Henne. (Compl. ¶¶ 21-23, 25, re: Demand Letterl and id. ¶ 24, re: April 13, 2010 email.)
a. Debt Collector Preface
In the April 1, 2010 letter, Mr. Gelman represented that “[t]his firm14 is a debt collector” and in the April 13, 2010 email, under his signature block, was the notation, “This is from a debt collector . . .” The court notes that the warning on the bottom of the April 13, 2010 email does not appear to be part of the normal signature block of Mr. Gelman, because it does not appear on the short transmission at the beginning of the email string wherein Mr. Gelman advised “Tracy,” that he just left her a voice mail as well. (Resp. at Doc. No. 23-4.) This email warning, therefore, appears [*22] to have been specifically typed in for inclusion in the lengthy portion of the email.
14 The letterhead on the communication is “Mountain Law Group.” Mountain Law Group is not a defendant in this action.
Mr. Gelman states he has mediated a large number of debt collection disputes and is therefore “relatively familiar with the collection industry.” (Gelman Aff. ¶ 11.) While the court considers the language used by Mr. Gelman – commonly referred to as a “mini-Miranda” or the “debt collector preface” – as “some” evidence to be considered in the debt collector determination, it is not particularly persuasive standing alone. First, setting forth such a debt collector preface does not create any kind of equitable estoppel. Equitable estoppel requires a showing of a misleading representation on which the opposing party justifiably relied which would result in material harm if the actor is later permitted to assert a claim inconsistent with the prior representation. Plaintiffs have offered no evidence to support a claim that they detrimentally relied upon the debt collector preface. See In re Pullen, 451 B.R. 206, 210 (Bkrtcy. N. D. Ga. 2011).
When attempting to collect a debt, the court applauds [*23] a practice whereby the sender recognizes itself as a debt collector in a mini-Miranda warning regardless of any legal requirement and considers such an advisement prudent and in the spirit of the FDCPA. This course of action would be expected of an attorney such as Mr. Gelman who frequently is in a position to mediate debt collection disputes. However, calling oneself a rose, does not necessarily arouse the same olfactory response as would a true rose.
b. Use of Form Letters
Plaintiffs argue that Mr. Gelman communicates as a debt collector through the use of form letters. For this proposition, they attach Exhibit 8, three letters apparently authored by Mr. Gelman when he was associated with the law firm of Dunn Keyes Gelman & Pummell, LLC. Each of the three letters appears to be what is commonly known as a demand letter – an attempt to collect money from persons who allegedly owed CBR as a result of damage done to a snowmobile. Each letter begins with a one-line salutation introducing the lawyer as representing Colorado Backcountry Rentals, Inc. Thereafter, each letter proceeds for several paragraphs to outline specific and unique facts concerning the alleged debtor’s obligation for damages [*24] to CBR. (Id.) Each letter then contains a paragraph, in bold typeface, stating that the debtor can submit a sum certain in settlement of the matter in bold typeface. Each of the three letters contains a summary paragraph at the end which states the letter is a settlement offer and that court proceedings may be instituted if payment is not made. This general format is consistent with the April 1, 2010 demand letter sent to Mr. Henne. Two of the letters in Exhibit 8 contain the debt collector preface at both the beginning and end of the letter; one of the letters contains the legend only at the beginning, similar to the format of the April 1, 2010 demand letter sent to Mr. Henne by Mr. Gelman.
The court finds that these letters are not “form” collection letters such as those that would be utilized by a business engaged primarily in the business of debt collection. Although there is some boilerplate language common to all, each letter is personally authored and the main body of the text is a unique recitation of the facts and circumstances peculiar to that case. These three letters, viewed against the April 1, 2010 letter Mr. Gelman sent to Mr. Henne, are similar only in the boilerplate [*25] language at the beginning and end of the letter and do not persuade the court that they are form letters indicating that Mr. Gelman is in the regular business of collecting debts.
c. Pattern of Litigation Activity
Mrs. Hightower-Henne states, without any evidentiary foundation, that Defendant has filed “several suits for collections for CBR” which indicate “a pattern of escalating fees for nominal claims.” (Hightower Affidavit ¶ 4.) She does not further describe or attach any of the cases to which she refers, although one might assume they may be among those cases sketchily mentioned in rejected Exhibit 7 to the Plaintiffs’ Response. Mrs. Hightower-Henne blithely asserts that she has spoken to several persons who were “parties in these suits” but does not state what significance anything they may have told her was, or for that matter, what they even said. (Id.) Although the court will recognize this testimony as admissible, it is wholly unpersuasive as to the issue to which it is apparently directed.
d. Summary
Considering the undisputed testimony of Mr. Gelman and Mrs. Hightower-Henne together with the admissible documentary evidence submitted by the parties, this court finds that there [*26] are no material facts in dispute relevant to the determination of whether Mr. Gelman is a debt collector as defined in the FDCPA. For all the reasons set forth above, the court finds that Mr. Gelman is not a debt collector pursuant to the FDCPA and therefore, summary judgment in his favor is appropriate.
Given that the determination that Mr. Gelman is not a debt collector is dispositive of the case, the court declines to address further Mrs. Hightower-Henne’s standing to sue or whether any of the actions undertaken by Mr. Gelman would have violated the FDCPA had he been found to be a debt collector under the Act.
Wherefore, it is ORDERED
1. Defendant Leonard M. Gelman’s Motion for Summary Judgment [Doc. No. 17] is GRANTED and this case is dismissed with prejudice. Defendant may have his cost by filing a bill of costs pursuant to D.C.COLO.LCivR 54.1 and the Clerk of Court shall enter final judgment in favor of Defendant Gelman in accordance with this Order.
2. Plaintiffs’ “Motion to File Sur-Reply,” [Doc. No. 26] is DENIED.
3. The Final Pretrial Conference set for January 19, 2012 at 10:45 a.m. is VACATED
Dated this 12th day of January, 2012.
BY THE COURT:
/s/ Kathleen M Tafoya
Kathleen M Tafoya
United [*27] States Magistrate Judge
G-YQ06K3L262
Texas appellate court allows a release to stop a gross negligence claim.
Posted: April 8, 2019 Filed under: Indoor Recreation Center, Release (pre-injury contract not to sue), Texas | Tags: argues, Assumption of risk, bystander, Cause of action, consortium, conspicuousness, cross-motion, entities, fair notice, Gross negligence, lettering, matter of law, negligence rule, partial summary judgment, pet, pre-injury, Public Policy, Summary judgment, summary judgment motion, Trampoline, Trial court, waive Leave a commentIf you have a clause in your release that says, “except gross negligence” or something like that get rid of it. Why teach the plaintiff’s how to beat you, besides, you may win, which is what happened in this case.
Citation: Quiroz v. Jumpstreet8, Inc., et. al., 2018 Tex. App. LEXIS 5107
State: Texas: Court of Appeals of Texas, Fifth District, Dallas
Plaintiff: Graciela Quiroz, individually, A/N/F of XXXX (“JOHN DOE 1”) and XXXX (“JOHN DOE 2”), Minors, and Robert Sullivan, Individually
Defendant: Jumpstreet8, Inc., Jumpstreet, Inc. and Jumpstreet Construction, Inc.
Plaintiff Claims: Negligence and Gross Negligence
Defendant Defenses: Release
Holding: For the Defendant
Year: 2018
Summary
Plaintiff injured her back attempting to do a back flip on a trampoline at the defendant’s facility rendering her a paraplegic. She sued for her injuries claiming negligence and gross negligence. The court found the release stopped the plaintiff’s claims for negligence and gross negligence.
Facts
On November 29, 2014, Quiroz and her sixteen-year-old son went to Jumpstreet. Prior to using the facility, Quiroz was given a pre-injury release form that was titled “Jumpstreet, LLC Release and Parent/Guardian Waiver of Liability and Assumption of Risk.” The Release recited the following statements under the title: “PLEASE READ THIS DOCUMENT CAREFULLY. BY SIGNING IT, YOU ARE GIVING UP LEGAL RIGHTS.” After signing the Release, Quiroz and her son jumped on a trampoline. When Quiroz attempted to do a flip, she injured her neck. Quiroz is now paralyzed from the waist down. Quiroz brought suit, individually, against Jumpstreet for negligence and gross negligence and as next friend of two minor children for their loss of parental consortium and their bystander claims for mental anguish. Robert Sullivan (Quiroz’s spouse) joined the suit for loss of consortium and as next friend of a third minor child for loss of parental consortium and a bystander claim for mental anguish.
Jumpstreet filed a “Traditional Motion for Summary Judgment” alleging summary judgment was proper because Quiroz had signed a Release. In the motion, Jumpstreet stated that because Quiroz alleged negligence and gross negligence claims against Jumpstreet arising from her utilizing a Jumpstreet facility, the Release signed by Quiroz expressly released any negligence and gross negligence claims. Jumpstreet asserted the Release was valid and enforceable because it specifically named the party to be released, it met the fair notice requirements of conspicuousness and the express negligence rule, and it met the contractual elements of mutual intent and valid consideration.
Quiroz filed a response to Jumpstreet’s motion for summary judgment and a cross-motion for partial summary judgment that alleged summary judgment for Jumpstreet was improper because there was an issue of material fact regarding the Release. Quiroz alleged she was entitled to a partial summary judgment because the Release was “void, voidable and unenforceable” because the named entity did not exist at the time of her injury, the Release was ambiguous, a parent could not waive claims of minors, and the Release could not waive gross negligence claims because it would be against public policy to do so. The trial court granted Jumpstreet’s traditional motion for summary judgment and denied Quiroz’s cross-motion for partial summary judgment. Quiroz timely filed this appeal.
The trial court granted the defendant’s motion for summary judgment based on the release and denied the plaintiff’s cross motion for summary judgment. The plaintiff appealed.
Analysis: making sense of the law based on these facts.
The issue for the appellate court was whether or not the motion for summary judgment granted for the defendant, and the cross motion for the plaintiff that was denied were done so correctly. Should a release bar a claim for negligence and gross negligence under Texas law.
Release law in Texas appears to be quite specific.
The Release signed by Quiroz was a prospective release of future claims, including claims based on Jumpstreet’s own negligence. A release is an absolute bar to the released matter and extinguishes a claim or cause of action.
To win Jumpstreet only had to show the fair notice requirement of the law was met.
Jumpstreet had to show that the Release’s language met the fair notice requirement of conspicuousness and the express negligence rule. See id. “Conspicuous” means the terms must be presented in a manner that a reasonable person against whom it is to operate ought to have notice.
The fair notice requirement under Texas law requires the release language to be clear, unambiguous and within the four corners of the contract.
The express negligence rule is not an affirmative defense, but it is a rule of contract interpretation. This rule states that if a party intends to be released from its own future negligence, it must express that intent in clear, unambiguous terms within the four corners of the contract.
The issue the court focused on was the claim the plaintiff originally made that the defendant identified in the release was not the defendant who owned and operated the facility where she was injured. The original defendant was an LLC and had been dissolved, and a new LLC had taken its’ place. The release was not updated to show these changes.
In many states, this would have been a fatal flaw for the defendant.
The court found the defendants were owned and run by the same brothers and were the same for the purposes of this lawsuit. The new LLC replaced the old LLC and was covered by the release.
The court then looked at the release and pointed out the reasons why the release was going to be supported.
As noted above, the waiver and release language is in capital lettering immediately above the signature line where Quiroz printed her name, date of birth, age, address, and telephone number. Further, on page one in the assumption of risk paragraphs, the person signing the Release acknowledges the “potentially hazardous activity,” and the Release lists possible injuries, including “but not limited to” sprains, heart attack, and even death. Although paralysis is not specifically named as an injury, it is certainly less than death and thus would be included within the “but not limited to” language. Furthermore, the release of liability paragraph above Quiroz’s signature expressly lists the types of claims and causes of action she is waiving, including “negligence claims, gross negligence claims, personal injury claims, and mental anguish claims.
The plaintiff then argued the release was void because a release under Texas law cannot waive the claims of a minor when signed by a parent. The court agreed. However, since the child was not the injured plaintiff, it did not matter.
The court did look at the issue of whether or not a parent could sign away a minor’s right to sue. The court held the minor could still sue; however, a release signed by the parent would bar all the derivative claims based on the claims of the minor child. That means all claims by the parents, loss of consortium, etc., would be barred by the release. Only the claims of the minor child would survive.
The court then looked at whether a release could stop a claim for gross negligence. The court found that the decision had not been reviewed by the Texas Supreme Court and there was a mix of decisions in Texas regarding that issue.
The Texas courts that have allowed a release to top a gross negligence claim have held there is no difference between negligence and gross negligence under Texas law. The court went on to read the release and found the release in question had language that prevented claims for negligence and gross negligence. Therefore, the gross negligence claim was waived.
The Release met both the fair notice requirement for conspicuousness and the express negligence rule. It was, thus, enforceable. As a result, Jumpstreet met its burden of establishing it was entitled to summary judgment as a matter of law.
The release said it stopped claims for Gross Negligence and the Court agreed.
The defendant one because they had a well-written release that was easy to see and understand and said you can’t sue the defendant for negligence or gross negligence.
So Now What?
This is a first. A release was used to stop a gross negligence claim that was not based on a failure of the plaintiff to allege facts that were gross negligence. The release said it was effective against claims for negligence and gross negligence, and the court agreed.
Unless your state has specific statements were putting gross negligence in a release may void your release, or your supreme Court has specifically said a release cannot protect against gross negligence claims, you may want to add that phrase to your release.
No matter what, GET RID of clauses in your release that state the release is valid against all claims EXCEPT gross negligence. It is just stupid to put that in a release unless you have a legal system that requires it.
Putting that information into your release just tells the plaintiff and/or their attorney how to beat you. Don’t help the person trying to sue you!
Second, you never know; it may work. It did in this case in Texas.
What do you think? Leave a comment.
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gross negligence, entities, public policy, waive, summary judgment motion, summary judgment, partial summary judgment, trial court, cause of action, matter of law, fair notice, pet, negligence rule, conspicuousness, cross-motion, consortium, pre-injury, assumption of risk, trampoline, bystander, lettering, argues
Assumption of the Risk is a defense to negligence and gross negligence claims in this case against a college offering for credit tour abroad study.
Posted: April 1, 2019 Filed under: Assumption of the Risk, Georgia, Swimming | Tags: #AdventureTourism, #JamesHMoss, #Rec-Law, #RecLaw, assumption of the risk, beach, Coasta Rica, Coercion, College, College Course, Course, Current, Drowned, drowning, duty, For Credit, Gross negligence, Inc., Inherent Risk, JimMoss, Knowledge, Law, Legal Duty, Lifeguard, Negligence, Ocean, Oglethorpe University, OutdoorLaw, OutdoorRecreationLaw, Pacific Ocean, Playa Ventanas, Professor, RecreationLaw, Rip Tide, Student, Study Abroad, Summary judgment, Swimmer, Swimmers, swimming Leave a commentStudent died swimming in the Pacific Ocean and his parents sued the college for his death. College was dismissed because student was an adult and assumed the risk that killed him.
Downes et al. v. Oglethorpe University, Inc., 342 Ga.App. 250 (Ga.App. 2017)
State: Georgia, Court of Appeals of Georgia
Plaintiff: Elvis Downes and Myrna Lintner (parents of the deceased)
Defendant: Oglethorpe University, Inc.
Plaintiff Claims: Negligence and Gross Negligence
Defendant Defenses: Assumption of the Risk
Holding: for the Defendant
Year: 2017
Summary
There are some risks that the courts say you understand and accept the risks because we know of them. Examples are cliffs and water. Here, the family of a student who died on a study abroad trip while swimming in the ocean could not sue because the student assumed the risks of swimming.
What is interesting is the assumption of the risk defense was used to defeat a claim of negligence and Gross Negligence.
Facts
During the 2010-2011 academic year, Oglethorpe offered to their students a 12-day study-abroad trip to Costa Rica. The students were charged a fee for the trip to pay for expenses such as airfare, lodging, and food. The students were also required to pay the ” per credit tuition rate” and were to receive four credits toward their degree for academic work associated with the trip. Oglethorpe retained Horizontes, a Costa Rican tour operator, to coordinate the trip and to provide transportation and an English-speaking guide.
Dr. Jeffrey Collins was then the director of Oglethorpe’s study-abroad program. According to Collins, Oglethorpe tried to follow ” best practices,” which is ” defined as those protocols, procedures that as best and as far as possible ensure[ ] the safety of students.” He acknowledged that students would swim on the trips. Collins was not aware of any potential dangers in Costa Rica and did no investigation to ascertain if there were potential dangers in Costa Rica.
During pre-trip meetings with Downes and the five other students who had registered for the program, Dr. Roark Donnelly and Dr. Cassandra Copeland, the two professors who accompanied the students on the trip, asked the students if everyone was a good swimmer, and the students agreed that they were. The group also discussed swimming in the ocean, including ” that there are going to be currents.” One of the professors told the students that, during a previous study-abroad trip to another location, a student had recognized that he was a weak swimmer and was required to wear a life jacket during all water activities. After hearing this, the students continued to express that they were good swimmers. Before leaving on the trip, the students were required to sign a release agreement which included an exculpatory clause pertaining to Oglethorpe.
The students and professors flew to Costa Rica on December 28, 2010. During the course of the trip, on the afternoon of January 4, 2011, the group arrived at a hotel on the Pacific coast. The six students, two professors, the guide, and the driver got into their bus and drove to a nearby beach, Playa Ventanas, which had been recommended by the hotel. Upon their arrival, there were other people on the beach and in the water. There were no warning signs posted on the beach, nor any lifeguards or safety equipment present.
The students swam in the ocean, staying mostly together, and eventually ventured out into deeper water. After about 20 minutes, Dr. Donnelly yelled for the students to move closer to shore. Shortly thereafter, student Robert Cairns, a former lifeguard, heard a female student screaming. Cairns swam toward the screams, and the student informed him that Downes needed help. Cairns realized that ” some kind of current … had pulled us out.” Cairns swam to within ten feet of Downes and told him to get on his back and try to float. Downes could not get on his back, and Cairns kept telling him he had to try. After some time, Downes was struck by a wave, went under the water, and disappeared from Cairns’s view. Downes’s body was recovered from the ocean three days later.
Analysis: making sense of the law based on these facts.
The deceased student signed a release in this case, however the trial court and the appellate court made their decisions based on assumption of the risk.
Under Georgia law, assumption of the risk is a complete bra to a recovery.
The affirmative defense of assumption of the risk bars a plaintiff from recovering on a negligence claim if it is established that he[,] without coercion of circumstances, chooses a course of action with full knowledge of its danger and while exercising a free choice as to whether to engage in the act or not.
Absent a showing by the plaintiff of coercion or a lack of free choice assumption of the risk prevents the plaintiff from recovery any damages for negligence from the defendant.
To prove the deceased assumed the risk the college must show:
A defendant asserting an assumption of the risk defense must establish that the plaintiff (i) had knowledge of the danger; (ii) understood and appreciated the risks associated with such danger; and (iii) voluntarily exposed himself to those risks.
The plaintiff does not have to know and understand every aspect and facet of the risk. The knowledge can be that there are inherent risks in an activity even if the specifics of those risks are not known.
The knowledge requirement does not refer to a comprehension of general, non-specific risks. Rather, the knowledge that a plaintiff who assumes the risk must subjectively possess is that of the specific, particular risk of harm associated with the activity or condition that proximately causes injury.
Assumption of the risk is usually a jury decision because the jury must weigh whether or not the plaintiff truly understood the risks. However, if the risk is such that there is undisputed evidence that it exists and the plaintiff knew or should have known about it, the court can act.
As a general rule, whether a party assumed the risk of his injury is an issue for the jury that should not be decided by summary judgment unless the defense is conclusively established by plain, palpable and undisputed evidence.
Drowning is a known and understood risk under Georgia law of being in the water.
It is well established under Georgia law that ” [t]he danger of drowning in water is a palpable and manifest peril, the knowledge of which is chargeable to [persons] in the absence of a showing of want of ordinary capacity.
Because the deceased student was a competent adult, meaning over the age of 18 and not mentally informed or hampered, the risk was known to him. “As Downes was a competent adult, he was necessarily aware of the risk of drowning when he voluntarily entered the Pacific Ocean.”
The plaintiff’s argued the college created the risk because they did not investigate the beach, have an emergency preparedness plan, ensure the professors had adequate training and did not supply safety equipment. However, the court did not buy this because there was nothing in the record to show the College created or agreed to these steps to create an additional duty on the colleges part.
Assuming that Oglethorpe, having undertaken a study-abroad program, was under a duty to act with reasonable care, and that there is evidence of record that Oglethorpe failed to do so, assumption of risk is nevertheless a defense to negligence.
The college was under not statutory or common law duty to provide any of the issues the plaintiff argued. Nor did the college create a duty by becoming an insurer of the students.
Appellants do not show, however, that Oglethorpe was under a statutory or common law duty to provide safety equipment to its students during an excursion to the beach, or that the ocean is analogous to a nonresidential swimming pool. Nor can we conclude that Oglethorpe became an insurer for the safety of its students by undertaking a study-abroad program, or that it was responsible for the peril encountered by Downes in that it transported him to the beach.
Even then the assumption of the risk defense would apply because assuming the risk relieves the defendant of any negligence.
Even if a defendant is negligent, a determination that a plaintiff assumed the risk or failed to exercise ordinary care for [his] own safety bars recovery for the resulting injury suffered by the plaintiff, unless the injury was wilfully and wantonly inflicted.
The defendant was not liable because the student, as an adult would have appreciated the risks of drowning in the Pacific Ocean.
Because he was a competent adult, Downes would have appreciated the specific risk of drowning posed by entering a body of water so inherently dangerous as the Pacific Ocean. As Downes voluntarily did so, Oglethorpe established that he assumed that risk. Although Downes’s death was undeniably tragic, we are constrained to conclude that the trial court correctly granted Oglethorpe’s motion for summary judgment.
So Now What?
There are two important points in this decision.
First, although not discussed, the court allowed assumption of the risk to stop a claim for gross negligence. Normally, like assumption of the risk, whether or not a defendant was grossly negligent requires a review by the jury to determine if the facts alleged meet the definition of gross negligence in the state.
Second is the issue that the less you do the less liability you create. In the pre-trip briefing with the students the risks of swimming in the ocean were discussed. The students all stated they were strong swimmers and nothing more was done.
If the college had made them take a swim test, further questioned their swimming skills by requiring more information or making sure a professor who was a lifeguard was on the trip, the college would have created an additional duty owed to the students.
What do you think? Leave a comment.
|
James H. “Jim” Moss |
Jim Moss is an attorney specializing in the legal issues of the outdoor recreation community. He represents guides, guide services, and outfitters both as businesses and individuals and the products they use for their business. He has defended Mt. Everest guide services, summer camps, climbing rope manufacturers; avalanche beacon manufacturers, and many more manufacturers and outdoor industries. Contact Jim at Jim@Rec-Law.us |
Jim is the author or co-author of eight books about legal issues in the outdoor recreation world; the latest is Outdoor Recreation Insurance, Risk Management,
Outdoor Recreation Insurance, Risk Management, and Law
To see Jim’s complete bio go here and to see his CV you can find it here. To find out the purpose of this website go here.
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Quiroz v. Jumpstreet8, Inc., et. al., 2018 Tex. App. LEXIS 5107
Posted: March 31, 2019 Filed under: Indoor Recreation Center, Legal Case, Release (pre-injury contract not to sue), Texas | Tags: argues, Assumption of risk, bystander, Cause of action, consortium, conspicuousness, cross-motion, entities, fair notice, Gross negligence, lettering, matter of law, negligence rule, partial summary judgment, pet, pre-injury, Public Policy, Summary judgment, summary judgment motion, Trampoline, Trial court, waive Leave a commentQuiroz v. Jumpstreet8, Inc., et. al., 2018 Tex. App. LEXIS 5107
Graciela Quiroz, individually, A/N/F OF XXXX (“JOHN DOE 1”) AND XXXX (“JOHN DOE 2”), Minors, and Robert Sullivan, Individually, A/N/F OF XXXX (“JOHN DOE 3”), Appellants v. Jumpstreet8, Inc., Jumpstreet, Inc. and Jumpstreet Construction, Inc., Appellees
No. 05-17-00948-CV
Court of Appeals of Texas, Fifth District, Dallas
July 9, 2018
On Appeal from the 298th Judicial District Court Dallas County, Texas Trial Court Cause No. 15-02671
Before Myers, Boatright, and O’Neill Justices. [1]
MEMORANDUM OPINION
MICHAEL J. O’NEILL JUSTICE, ASSIGNED
Appellant Graciela Quiroz brought a negligence suit against appellees Jumpstreet8, Inc., Jumpstreet, Inc., and Jumpstreet Construction, Inc. (collectively Jumpstreet) for injuries she sustained while jumping on a trampoline at a Jumpstreet facility. Jumpstreet moved for summary judgment based upon a pre-injury release signed by Quiroz. Quiroz responded and filed a cross-motion for partial summary judgment. The trial court granted Jumpstreet’s motion for summary judgment, denied Quiroz’s cross-motion for partial summary judgment, and dismissed all of Quiroz’s claims. In one issue, Quiroz contends the trial court erred in granting Jumpstreet’s motion for summary judgment and denying her motion for partial summary judgment. We affirm the trial court’s order.
Background
On November 29, 2014, Quiroz and her sixteen-year-old son went to Jumpstreet. Prior to using the facility, Quiroz was given a pre-injury release form that was titled “Jumpstreet, LLC Release and Parent/Guardian Waiver of Liability and Assumption of Risk.” The Release recited the following statements under the title: “PLEASE READ THIS DOCUMENT CAREFULLY. BY SIGNING IT, YOU ARE GIVING UP LEGAL RIGHTS.” After signing the Release, Quiroz and her son jumped on a trampoline. When Quiroz attempted to do a flip, she injured her neck. Quiroz is now paralyzed from the waist down. Quiroz brought suit, individually, against Jumpstreet for negligence and gross negligence and as next friend of two minor children for their loss of parental consortium and their bystander claims for mental anguish. Robert Sullivan (Quiroz’s spouse) joined the suit for loss of consortium and as next friend of a third minor child for loss of parental consortium and a bystander claim for mental anguish.
Jumpstreet filed a “Traditional Motion for Summary Judgment” alleging summary judgment was proper because Quiroz had signed a Release. In the motion, Jumpstreet stated that because Quiroz alleged negligence and gross negligence claims against Jumpstreet arising from her utilizing a Jumpstreet facility, the Release signed by Quiroz expressly released any negligence and gross negligence claims. Jumpstreet asserted the Release was valid and enforceable because it specifically named the party to be released, it met the fair notice requirements of conspicuousness and the express negligence rule, and it met the contractual elements of mutual intent and valid consideration.
Quiroz filed a response to Jumpstreet’s motion for summary judgment and a cross-motion for partial summary judgment that alleged summary judgment for Jumpstreet was improper because there was an issue of material fact regarding the Release. Quiroz alleged she was entitled to a partial summary judgment because the Release was “void, voidable and unenforceable” because the named entity did not exist at the time of her injury, the Release was ambiguous, a parent could not waive claims of minors, and the Release could not waive gross negligence claims because it would be against public policy to do so. The trial court granted Jumpstreet’s traditional motion for summary judgment and denied Quiroz’s cross-motion for partial summary judgment. Quiroz timely filed this appeal.
Issue Presented
In her sole issue on appeal, Quiroz contends the trial court erred by granting Jumpstreet’s motion for summary judgment and denying her cross-motion for partial summary judgment. Quiroz asserts that as a matter of law, no contract existed between her and Jumpstreet, LLC, the entity named in the Release. Quiroz argues there was no “meeting of the minds on the contract’s essential terms” between her and Jumpstreet, LLC because Jumpstreet, LLC had been dissolved in June 2011 and did not exist at the time of her injury in November 2014. Quiroz contends that because a nonexistent entity cannot form or enter into a contract, the Release is void and unenforceable as a matter of law.
Quiroz further contends the Release did not meet the “fair notice requirement” because none of the Jumpstreet defendants are named in the Release; only the nonexistent entity “Jumpstreet, LLC” is specifically named in the Release. Quiroz argues the Release also never specifically identified or released a claim for an injury due to paralysis. Further, Quiroz asserts that as a matter of law, a parent cannot waive a minor’s claims, and a Release cannot waive any claims for gross negligence because that is against public policy.
Jumpstreet responds that the trial court properly granted summary judgment in their favor because Quiroz signed a valid, enforceable Release before using its facility. The Release satisfied both the fair notice requirement and the express negligence rule as to both negligence and gross negligence claims. Jumpstreet also argues the Release meets the general requirements of a valid contract because it shows a “meeting of the minds” and valid consideration. Jumpstreet further responds that because the consortium and bystander claims are derivative claims, they are barred as a matter of law.
Applicable Law
We review a trial court’s summary judgment order de novo. Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010). A party moving for summary judgment has the burden of showing that no genuine issue of material fact existed and that it was entitled to judgment as a matter of law. City of Dallas v. Dallas Morning News, LP, 281 S.W.3d 708, 712 (Tex. App.- Dallas 2009, no pet.); see also Tex. R. Civ. P. 166A(c). When reviewing a summary judgment, we take as true all evidence favorable to the nonmovant, and we indulge every reasonable inference and resolve any doubts in the nonmovant’s favor. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). When both sides move for summary judgment, however, each party bears the burden of establishing it is entitled to judgment as a matter of law. City of Garland v. Dallas Morning News, 22 S.W.3d 351, 356 (Tex. 2000). When the trial court grants one motion and denies the other, we review the summary judgment evidence presented by both parties and determine all the questions presented. S. Crushed Concrete, LLC v. City of Houston, 398 S.W.3d 676, 678 (Tex. 2013).
The Release signed by Quiroz was a prospective release of future claims, including claims based on Jumpstreet’s own negligence. A release is an absolute bar to the released matter and extinguishes a claim or cause of action. Dresser Indus., Inc. v. Page Petroleum, Inc., 853 S.W.2d 505, 509 (Tex. 1993). Jumpstreet had to show that the Release’s language met the fair notice requirement of conspicuousness and the express negligence rule. See id. “Conspicuous” means the terms must be presented in a manner that a reasonable person against whom it is to operate ought to have notice. Quintana v. CrossFit Dallas, L.L.C., 347 S.W.3d 445, 450 (Tex. App.- Dallas 2011, no pet, ).
The express negligence rule is not an affirmative defense, but it is a rule of contract interpretation. See Fisk Elec. Co. v. Constructors & Assocs., Inc., 888 S.W.2d 813, 814 (Tex. 1994). This rule states that if a party intends to be released from its own future negligence, it must express that intent in clear, unambiguous terms within the four corners of the contract. Atl. Richfield Co. v. Petroleum Pers., Inc., 768 S.W.2d 724, 726 (Tex. 1989); Quintana, 347 S.W.3d at 450.
Discussion
Parties have the right to contract as they see fit as long as their agreement does not violate the law or public policy. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 129 & n.11 (Tex. 2004). Texas law recognizes and protects a broad freedom of contract. Fairfield Ins. Co. v. Stephens Martin Paving, LP, 246 S.W.3d 653, 671 (Tex. 2008). Under Texas law, a release is a contract and is subject to avoidance just like any other contract. Williams v. Glash, 789 S.W.2d 261, 264 (Tex. 1990). When construing a contract, the court’s primary concern is to give effect to the written expression of the parties’ intent. Forbau v. Aetna Life Ins. Co., 876 S.W.2d 132, 133 (Tex. 1994). Public policy dictates that courts are not to interfere lightly with this freedom of contract. See, e.g., Gym-N-I Playgrounds, Inc. v. Snider, 220 S.W.3d 905, 912 (Tex. 2007) (commercial lease expressly waiving warranties); In re Prudential, 148 S.W.3d at 129 & n.11 (contractual jury waiver); BMG Direct Mktg., Inc. v. Peake, 178 S.W.3d 763, 767 (Tex. 2005) (liquidated damages clause); Mo., Kan. & Tex. Ry. Co. of Tex. v. Carter, 68 S.W. 159, 164 (Tex. 1902) (contract waiving responsibility for fires caused by railroad engines).
A tortfeasor can claim the protection of a release only if the release refers to him by name or with such descriptive particularity that his identity or his connection with the tortious event is not in doubt. Duncan v. Cessna Aircraft Co., 665 S.W.2d 414, 420 (Tex. 1984); see also Frazer v. Tex. Farm Bureau Mut. Ins. Co., 4 S.W.3d 819, 823-24 (Tex. App.-Houston [1st Dist.] 1999, no pet.) (with use of “and its affiliated companies,” release sufficiently identified Texas Farm Bureau Underwriters such that its identity is not in doubt.). Here, the Release clearly and unambiguously stated it applied to all Jumpstreet entities that are engaged in the trampoline business. Although the Release specifically named “Jumpstreet, LLC,” it also stated the Release equally applied to “its parent, subsidiaries, affiliates, other related entities, successors, owners, members, directors, officers, shareholders, agents, employees, servants, assigns, investors, legal representatives and all individuals and entities involved in the operation of Jumpstreet.”
The record shows the entity named “Jumpstreet, LLC” was dissolved in June, 2011. The record also contains a deposition transcript from Martin L. Brooks who testified he and Tim Crawford were cousins and the sole owners of all the Jumpstreet entities, all the Jumpstreet entities were engaged in the trampoline business, and the entity named “Jumpstreet, Inc.” was the parent company. The record shows that in her original petition, Quiroz named seventeen different Jumpstreet entities, including “Jumpstreet, Inc.,” the parent company. In her “fourth amended petition” that was in effect at the time of the summary judgment hearing, however, she named only three of the Jumpstreet entities, including the parent company. The Jumpstreet appellees in this case are all engaged in the trampoline business and described with such particularity that their identity was never in doubt. Duncan, 665 S.W.2d at 420; Frazer, 4 S.W.3d at 823-24.
Although the Release in this case contains two pages, it conspicuously contains several paragraphs with bolded headings and capitalized font. On page one, an “assumption of risk” section is separate from a “release of liability” section. The Release warns prospective patrons to “please read this document carefully” and “by signing it, you are giving up legal rights.” This warning appears directly under the title of the Release and is written in all capital letters. On page two, the Release has an “assumption of the risk” paragraph in all capital letters and surrounded by a box, calling specific attention to it. On both pages, there are several references to the risks and dangers of participating in Jumpstreet services throughout the Release. The “waiver and release” language is repeated a final time, in capital lettering, immediately above the signature line where Quiroz printed her name, date of birth, age, address, and telephone number. See Quintana, 347 S.W.3d at 452 (concluding a two-page contract titled “Health Assessment Waiver and Goals Work Sheet” that included word “release” in larger and bold print near top of second page and initialed by party was “sufficiently conspicuous to provide fair notice”).
The Release also does not run afoul of the express negligence rule. As noted above, the waiver and release language is in capital lettering immediately above the signature line where Quiroz printed her name, date of birth, age, address, and telephone number. See Quintana, 347 S.W.3d at 452. Further, on page one in the assumption of risk paragraphs, the person signing the Release acknowledges the “potentially hazardous activity,” and the Release lists possible injuries including “but not limited to” sprains, heart attack, and even death. Although paralysis is not specifically named as an injury, it is certainly less than death and thus would be included within the “but not limited to” language. Also, the release of liability paragraph above Quiroz’s signature expressly lists the types of claims and causes of action she is waiving, including “negligence claims, gross negligence claims, personal injury claims, and mental anguish claims.” Id.
Quiroz next argues that a parent cannot waive a minor child’s claims. Quiroz asserts Munoz v. II Jaz Inc., 863 S.W.2d 207 (Tex. App.-Houston [14th Dist.] 1993), is the leading Texas case. In Munoz, the parents sued an amusement park for damages after their child was injured on a ride. The trial court granted the park’s motion for summary judgment based upon a pre-injury release signed by the parents. The appellate court reversed, holding that the Family Code did not give parents the power to waive a child’s cause of action for personal injuries. Munoz is distinguishable from Quiroz’s claims in that Quiroz sustained the injury and not her children. Moreover, the cause of action for loss of parental consortium, like the cause of action for loss of spousal consortium, is a derivative cause of action. As such, the defenses that bar all or part of the injured parent’s recovery have the same effect on the child’s recovery. Reagan v. Vaughn, 804 S.W.2d 463, 468 (Tex. 1990), on reh’g in part (Mar. 6, 1991). And although bystander claims are considered independent and not derivative, it is also true that the bystander plaintiff cannot recover unless the injured person can recover. Estate of Barrera v. Rosamond Vill. Ltd. P’ship, 983 S.W.2d 795, 799- 800 (Tex. App.-Houston [14th Dist.] 1998, no pet.).
Quiroz lastly argues a pre-injury release cannot apply to gross negligence claims because that is against public policy. Generally, a contract provision “exempting a party from tort liability for harm caused intentionally or recklessly is unenforceable on grounds of public policy. Restatement (Second) of Contracts § 195(1 (1981). Quiroz cites our case in Van Voris v. Team Chop Shop, 402 S.W.3d 915 (Tex. App.-Dallas 2013, no pet.), for this proposition. There is disagreement among the courts of appeals as to whether a party may validly release claims for gross negligence. The Texas Supreme Court has not ruled on whether a pre-injury release as to gross negligence is against public policy when there is no assertion that intentional, deliberate, or reckless acts cause injury.[2] Some appellate courts have held that negligence and gross negligence are not separable claims and that therefore a release of liability for negligence also releases a party from liability for gross negligence. See Tesoro Petroleum Corp. v. Nabors Drilling U.S., 106 S.W.3d 118, 127 (Tex. App.-Houston [1st Dist.] 2002, pet. denied); Newman v. Tropical Visions, Inc., 891 S.W.2d 713, 722 (Tex. App.-San Antonio 1994, writ denied).
In contrast, we recently held that a plaintiff’s execution of a contract specifically releasing a defendant from liability for negligence did not release the defendant from liability for gross negligence. Van Voris, 402 S.W.3d at 926. We reasoned that the public policy requiring an express release from negligence also requires an express release from gross negligence. See id. We specifically pointed out that “our conclusion is limited to the context presented by this case.” See id. Other courts have held that pre-accident waivers of gross negligence are invalid as against public policy. See Sydlik v. REEIII, Inc., 195 S.W.3d 329, 336 (Tex. App.-Houston [14th Dist.] 2006, no pet.); Smith v. Golden Triangle Raceway, 708 S.W.2d 574, 576 (Tex. App.-Beaumont 1986, no writ).
Van Voris is distinguishable from the case here in that Quiroz’s Release specifically stated that both negligence and gross negligence claims were waived. The assumption of risk paragraph that lists the specific types of claims/causes of actions that were included in the Release was encased in a box, had all capital lettering, and appeared above the signature line. As noted above, Quiroz received fair notice regarding the claims being waived. See Quintana, 347 S.W.3d at 450.
Conclusion
The Release met both the fair notice requirement for conspicuousness and the express negligence rule. It was, thus, enforceable. See Quintana, 347 S.W.3d at 452. As a result, Jumpstreet met its burden of establishing it was entitled to summary judgment as a matter of law. See City of Garland, 22 S.W.3d at 356. We conclude the trial court properly granted Jumpstreet’s motion for summary judgment. See Travelers Ins. Co., 315 S.W.3d at 862.
We affirm the trial court’s order granting Jumpstreet’s motion for summary judgment and denying Quiroz’s cross-motion for partial summary judgment.
On Appeal from the 298th Judicial District Court, Dallas County, Texas Trial Court Cause No. 15-02671. Opinion delivered by Justice O’Neill. Justices Myers and Boatright participating.
In accordance with this Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
It is ORDERED that appellees Jumpstreet8, Inc., Jumpstreet, Inc. and Jumpstreet Construction, Inc. recover their costs of this appeal from appellants Graciela Quiroz and Robert Sullivan.
—–
Notes:
[1] The Hon. Michael J. O’Neill, Justice, Assigned
[2] We note that Quiroz cited Zachry Construction Corp. v. Port of Houston Authority Of Harris County., 449 S.W.3d 98 (Tex. 2014), in her “First Supplemental Brief,” for the proposition that “a pre-injury release of future liability for gross negligence is void as against public policy.” In Zachry, the Texas Supreme Court had to decide, in a breach of contract case, whether a no-damages-for-delay provision shielded the owner from liability for deliberately and wrongfully interfering with the contractor’s work. In Zachry, the Texas Supreme Court held the no-damages-for-delay provision at issue was unenforceable as against public policy. Zachry, however, is distinguishable because that case concerned how a no-delay-for-damages provision could be enforced if the Port’s intentional misconduct caused the delay. Here, Quiroz has not asserted that Jumpstreet’s alleged negligence was intentional, deliberate, or reckless.
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Minnesota Supreme Court allows skier v. skier lawsuits in MN. Colliding with a tree is an inherent risk but colliding with a person is not?
Posted: March 25, 2019 Filed under: Assumption of the Risk, Minnesota, Skier v. Skier, Skiing / Snow Boarding | Tags: appreciated, assume a risk, ball, Baseball, Collisions, Court of Appeals, district court, doctrine, Downhill, flying, Hazard, Hockey, injuries, instructor, Law, participants, patron's, Primary Assumption of Risk, recreational, rider's, secondary assumption, Skating, skier collision, skier v. skier, skier's, skiing, Snowboarder v. Skier, snowboarding, Snowmobiling, Spectator, Sport, Summary judgment, trick Leave a commentNSSA website that describes skiing as safe if done under control contributes to the reasoning that skiers should be able to sue other skiers in a sport.
Soderberg, v. Anderson, 906 N.W.2d 889, 2018 Minn. App. LEXIS 47 (Minn. Ct. App., Jan. 16, 2018)
State: Minnesota; Supreme Court of Minnesota
Plaintiff: Julie A. Soderberg
Defendant: Lucas Anderson
Plaintiff Claims: Negligence
Defendant Defenses: Primary Assumption of the Risk
Holding: For the Plaintiff
Year: 2019
Summary
Primary Assumption of the Risk does not apply to collisions between skiers on the slopes in Minnesota. Any collision between two people using a ski area will now result in lawsuits.
The Minnesota Supreme Court believed that skiing, and snowboarding were not inherently dangerous because they could be done with common sense and awareness to reduce the risk, as quoted from the NSAA website.
Facts
On the morning of January 3, 2016, appellant Lucas Anderson, age 35, went snowboarding at Spirit Mountain near Duluth. Spirit Mountain welcomes both skiers and snowboarders to enjoy runs marked “easiest,” “more difficult,” and “difficult.” Anderson considered himself to be an expert snowboarder. He began skiing in elementary school and took up snowboarding when he was 15.
When Anderson snowboarded at Spirit Mountain, he typically warmed up by going down less challenging runs. That morning, Anderson went down part of a “more difficult” run called Scissor Bill, which merges with an “easiest” run called Four Pipe. As he left Scissor Bill and entered Four Pipe, Anderson slowed down, looked up for other skiers and snowboarders coming down the hill, and proceeded downhill.
Anderson then increased his speed, used a hillock as a jump, and performed an aerial trick called a backside 180. To perform the trick, Anderson-riding his snowboard “regular”-went airborne, turned 180 degrees clockwise, and prepared to land “goofy.” Halfway through the trick, Anderson’s back was fully facing downhill. He could not see what was below him.
Respondent Julie Soderberg was below him. A ski instructor employed by Spirit Mountain, she was giving a lesson to a six-year-old child in an area of Four Pipe marked “slow skiing area.” At the moment when Anderson launched his aerial trick, Soderberg’s student was in the center of the run. Soderberg was approximately 10 to 15 feet downhill from, and to the left of, her student. She was looking over her right shoulder at her student.
As Anderson came down from his aerial maneuver, he landed on Soderberg, hitting her behind her left shoulder. Soderberg lost consciousness upon impact. She sustained serious injuries.
Soderberg sued Anderson for negligence. Anderson moved for summary judgment, arguing that, based on undisputed facts and the doctrine of implied primary assumption of risk, he owed Soderberg no duty of care and was entitled to judgment as a matter of law.
Analysis: making sense of the law based on these facts.
The court first looked at Assumption of the risk and the differences between Primary Assumption of the Risk and Secondary Assumption of the Risk.
Secondary assumption of risk is an affirmative defense that may be invoked when the plaintiff has unreasonably and voluntarily chosen to encounter a known and appreciated danger created by the defendant’s negligence. Secondary assumption of risk is “an aspect of contributory negligence,” and is part of the calculation of comparative fault. Id.
By contrast, primary assumption of risk is not a defense and applies only in limited circumstances. Unlike secondary assumption, primary assumption of risk “completely bars a plaintiff’s claim because it negates the defendant’s duty of care to the plaintiff.” Therefore, primary assumption of risk precludes liability for negligence, and is not part of the calculation of comparative fault. Primary assumption of risk “arises ‘only where parties have voluntarily entered a relationship in which plaintiff assumes well-known, incidental risks.'”
The court found the ski instructor did not assume the risk of being hit. “Here, the parties agree that Soderberg did not expressly assume the risk of being hit by Anderson. So, the issue is whether she assumed the risk by implication.”
This first step in the analysis, that the ski instructor did not assume the risk of being hit, which the defense agreed to, sealed the fate of the decision. I think now days; most people consider the risk of a collision to be possible on the slopes.
So, the court then went through the history of primary assumption of the risk in Minnesota and how it was applied in baseball, skating and other sports. It then related why it has not applied primary assumption of the risk to snowmobiling.
Recreational snowmobiling, though, is a different matter. We have consistently declined to apply the doctrine to bar claims arising out of collisions between snowmobilers. In Olson v. Hansen, 216 N.W.2d 124 we observed that, although snowmobiles can tip or roll, such a hazard “is one that can be successfully avoided. A snowmobile, carefully operated, is no more hazardous than an automobile, train, or taxi.” Id. at 128. Similarly, we “refused to relieve [a] defendant of the duty to operate his snowmobile reasonably and analyzed the defendant’s conduct under the doctrine of secondary assumption of risk.” In 2012, we reaffirmed that snowmobiling is not an inherently dangerous sporting activity.
The court found that although skiers do collide with each other, it is not so frequent that it is considered an inherent risk of the sport.
First, although there is no question that skiers can and do collide with one another, the record does not substantiate that injurious collisions between skiers are so frequent and damaging that they must be considered inherent in the sport. As the National Ski Areas Association has recognized through its seven-point Responsibility Code (adopted by Spirit Mountain), skiing and snowboarding contain “elements of risk,” but “common sense and personal awareness can help reduce” them. This recognition counsels against a flat no-duty rule that would benefit those who ski negligently. As the Connecticut Supreme Court has explained, “If skiers act in accordance with the rules and general practices of the sport, at reasonable speeds, and with a proper lookout for others on the slopes, the vast majority of contact between participants will be eliminated. The same may not be said of soccer, football, basketball and hockey . . . .”
The National Ski Area Association, (NSAA) has this statement on their website:
Common Sense, it’s one of the most important things to keep in mind and practice when on the slopes. The National Ski Areas Association (NSAA) believes education, helmet use, respect and common sense are very important when cruising down the mountain. NSAA developed Your Responsibility Code to help skiers and boarders be aware that there are elements of risk in snowsports that common sense and personal awareness can help reduce.
The National Ski Patrol, which probably has a better understanding of the risks of skiing does not have that statement on its website. The good news is both the NSAA, and the NSP now at least have the same code on their websites. That was not true in the past.
The court then stated it just did not want to extend primary assumption of the risk to another activity.
Second, even though today we do not overrule our precedent regarding flying sports objects and slippery rinks, we are loathe to extend the doctrine of implied primary assumption to yet another activity. “The doctrine of assumption of risk is not favored, and should be limited rather than extended.”
Finally, the court stated that it did not believe this decision would lead to fewer Minnesotans skiing. It will, but not by much. However, what it will do will be to increase litigation amount skiers and boarders. And if you are looking at going to a state to ski, knowing you can be sued if you hit someone else on the slopes might have you ski in another state.
Minnesota now joins Colorado in having billboards you can see leaving the ski areas asking if you have been hurt while skiing.
So Now What?
The court used an interesting analysis coupled with language from the NSAA website to determine that skiing was like snowmobiling and totally controllable, therefore, it was not a sport where you assume the risk of your injuries.
This is a minority opinion. Something this court did not even consider in its opinion. Most states you assume the risk of a collision. This decision was clearly written to increase the litigation in the state.
What do you think? Leave a comment.
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Downes et al. v. Oglethorpe University, Inc., 342 Ga.App. 250 (Ga.App. 2017)
Posted: March 12, 2019 Filed under: Assumption of the Risk, Georgia, Legal Case, Swimming | Tags: #AdventureTourism, #JamesHMoss, #Rec-Law, #RecLaw, assumption of the risk, beach, Coasta Rica, Coercion, College, College Course, Course, Current, Drowned, drowning, duty, For Credit, Gross negligence, Inc., Inherent Risk, JimMoss, Knowledge, Law, Legal Duty, Lifeguard, Negligence, Ocean, Oglethorpe University, OutdoorLaw, OutdoorRecreationLaw, Pacific Ocean, Playa Ventanas, Professor, RecreationLaw, Rip Tide, Student, Study Abroad, Summary judgment, Swimmer, Swimmers, swimming Leave a commentDownes et al. v. Oglethorpe University, Inc., 342 Ga.App. 250 (Ga.App. 2017)
342 Ga.App. 250 (Ga.App. 2017)
802 S.E.2d 437
Downes et al. v. Oglethorpe University, Inc
A17A0246
Court of Appeals of Georgia
June 30, 2017
Assumption of the risk. DeKalb State Court. Before Judge Polk, pro hac vice.
Katherine L. McArthur, Caleb F. Walker, for appellants.
Swift, Currie, McGhee & Hiers, David M. Atkinson, for appellee.
OPINION
[802 S.E.2d 438]
Ellington, Presiding Judge.
Erik Downes, then a 20-year-old college student, drowned in the Pacific Ocean on January 4, 2011, while he was in Costa Rica attending a study-abroad program organized by Oglethorpe University, Inc. Elvis Downes and Myrna Lintner (the ” Appellants” ), as Downes’s parents and next of kin, and in their capacity as administrators of Downes’s estate, brought this wrongful death action alleging that Oglethorpe’s negligence and gross negligence were the proximate cause of Downes’s drowning. The trial court granted Oglethorpe’s motion for summary judgment, and the Appellants appeal. We affirm because, as a matter of law, Downes assumed [802 S.E.2d 439] the risk of drowning when he chose to swim in the Pacific Ocean.
Under OCGA § 9-11-56 (c), [s]ummary judgment is warranted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. We review the grant or denial of a motion for summary judgment de novo, and we view the evidence, and the reasonable inferences drawn therefrom, in a light most favorable to the nonmovant. (Citations and punctuation omitted.) Assaf v. Cincinnati Ins. Co., 327 Ga.App. 475, 475-476 (759 S.E.2d 557) (2014). See also Johnson v. Omondi, 294 Ga. 74, 75-76 (751 S.E.2d 288) (2013) (accord).
So viewed, the evidence shows the following. During the 2010-2011 academic year, Oglethorpe offered to their students a 12-day study-abroad trip to Costa Rica. The students were charged a fee for the trip to pay for expenses such as airfare, lodging, and food. The students were also required to pay the ” per credit tuition rate” and were to receive four credits toward their degree for academic work associated with the trip. Oglethorpe retained Horizontes, a Costa Rican tour operator, to coordinate the trip and to provide transportation and an English-speaking guide.
Dr. Jeffrey Collins was then the director of Oglethorpe’s study-abroad program. According to Collins, Oglethorpe tried to follow ” best practices,” which is ” defined as those protocols, procedures that as best and as far as possible ensure[ ] the safety of students.” He acknowledged that students would swim on the trips. Collins was not aware of any potential dangers in Costa Rica and did no investigation to ascertain if there were potential dangers in Costa Rica.
During pre-trip meetings with Downes and the five other students who had registered for the program, Dr. Roark Donnelly and Dr. Cassandra Copeland, the two professors who accompanied the students on the trip, asked the students if everyone was a good swimmer, and the students agreed that they were. The group also discussed swimming in the ocean, including ” that there are going to be currents.” One of the professors told the students that, during a previous study-abroad trip to another location, a student had recognized that he was a weak swimmer and was required to wear a life jacket during all water activities. After hearing this, the students continued to express that they were good swimmers. Before leaving on the trip, the students were required to sign a release agreement which included an exculpatory clause pertaining to Oglethorpe.
The students and professors flew to Costa Rica on December 28, 2010. During the course of the trip, on the afternoon of January 4, 2011, the group arrived at a hotel on the Pacific coast. The six students, two professors, the guide, and the driver got into their bus and drove to a nearby beach, Playa Ventanas, which had been recommended by the hotel. Upon their arrival, there were other people on the beach and in the water. There were no warning signs posted on the beach, nor any lifeguards or safety equipment present.
The students swam in the ocean, staying mostly together, and eventually ventured out into deeper water. After about 20 minutes, Dr. Donnelly yelled for the students to move closer to shore. Shortly thereafter, student Robert Cairns, a former lifeguard, heard a female student screaming. Cairns swam toward the screams, and the student informed him that Downes needed help. Cairns realized that ” some kind of current … had pulled us out.” Cairns swam to within ten feet of Downes and told him to get on his back and try to float. Downes could not get on his back, and Cairns kept telling him he had to try. After some time, Downes was struck by a wave, went under the water, and disappeared from Cairns’s view. Downes’s body was recovered from the ocean three days later.
The Appellants filed this wrongful death action claiming that Downes’s death was the proximate result of Oglethorpe’s negligence and gross negligence. Evidence adduced during discovery included the testimony of Dr. John Fletemeyer, the Appellants’ expert in [802 S.E.2d 440] coastal sciences, that Downes had been caught in a ” rip current” [1] when he became distressed and ultimately drowned. Dr. Fletemeyer opined that some beaches on the western coast of Costa Rica are particularly dangerous ” mainly [because of] the lack of lifeguards,” but also because of physical conditions such as ” high wave energy force” and ” pocket beaches,” and that Playa Ventanas was a pocket beach.[2] He also testified that, in the context of the ocean, ” every beach you go to is extremely dangerous.” Other testimony showed that a continuing problem with drownings on beaches along the Pacific coast of Costa Rica was well publicized in Costa Rica, and that the United States Consular Authority in Costa Rica had ” published statistics about the danger of swimming on Costa Rica’s beaches and identified specifically the west coast beaches as being the most dangerous.” [3]
Following discovery, Oglethorpe moved for summary judgment and argued that (i) Oglethorpe owed no legal duty to Downes; (ii) the Appellants’ negligence claims are barred by Downes’s written waiver of liability and there is a lack of evidence that Oglethorpe was grossly negligent; and (iii) Downes assumed the risk of swimming in the ocean. The trial court granted Oglethorpe’s motion for summary judgment.
1. The Appellants contend that Oglethorpe was not entitled to summary judgment on the ground that Downes, as a matter of law, assumed the risk of drowning when he swam in the ocean.[4]
The affirmative defense of assumption of the risk bars a plaintiff from recovering on a negligence claim if it is established that he[,] without coercion of circumstances, chooses a course of action with full knowledge of its danger and while exercising a free choice as to whether to engage in the act or not. (Citation and punctuation omitted.) Vaughn v. Pleasent, 266 Ga. 862, 864 (1) (471 S.E.2d 866) (1996).
A defendant asserting an assumption of the risk defense must establish that the plaintiff (i) had knowledge of the danger; (ii) understood and appreciated the risks associated with such danger; and (iii) voluntarily exposed himself to those risks. The knowledge requirement does not refer to a comprehension of general, non-specific risks. Rather, the knowledge that a plaintiff who assumes the risk must subjectively possess is that of the specific, particular risk of harm associated with the activity or condition that proximately causes injury.
(Citation and punctuation omitted.) Gilreath v. Smith, 340 Ga.App. 265, 268 (1) (797 S.E.2d 177) (2017). ” As a general rule, whether a party assumed the risk of his injury is an issue for the jury that should not be decided by summary judgment unless the defense is conclusively established by plain, palpable and undisputed evidence.” (Citation and punctuation omitted.) Findley v. Griffin, 292 Ga.App. 807, 809 (2) (666 S.E.2d 79) (2008).
[342 Ga.App. 254] It is well established under Georgia law that ” [t]he danger of drowning in water is a palpable and manifest peril, the knowledge of which is chargeable to [persons] in the absence of a showing of want of ordinary capacity.” Bourn v. Herring, 225 Ga. 67, 69 (2) (166 S.E.2d 89) (1969). See, e.g., White v.
[802 S.E.2d 441]Ga. Power Co., 265 Ga.App. 664, 666 (1) (595 S.E.2d 353) (2004) (the ” [p]erils of deep water are instinctively known” ). The record does not show that Downes was aware of the presence of rip currents in the waters off the beach; however, ” [i]t is the body of water per se that presents an obvious risk of drowning, not its attendant conditions such as a strong unseen current or a deep unknown hole.” Id. at 667 (1). As Downes was a competent adult, he was necessarily aware of the risk of drowning when he voluntarily entered the Pacific Ocean.
The Appellants contend that Oglethorpe had a duty to exercise ordinary care in the planning and implementing of its study-abroad program to avoid exposing the students to a risk of drowning. Because Oglethorpe owed this duty, they contend, the fact that Downes entered the water voluntarily does not establish as a matter of law that he assumed the risk of drowning. Rather, they contend, Oglethorpe created the dangerous situation by taking Downes to the beach without investigating its dangers, adopting an emergency preparedness plan, ensuring the professors in charge had adequate training and procedures for supervising swimming students, and supplying safety equipment.
Assuming that Oglethorpe, having undertaken a study-abroad program, was under a duty to act with reasonable care, and that there is evidence of record that Oglethorpe failed to do so, assumption of risk is nevertheless a defense to negligence. ” Even if a defendant is negligent, a determination that a plaintiff assumed the risk or failed to exercise ordinary care for [his] own safety bars recovery for the resulting injury suffered by the plaintiff, unless the injury was wilfully and wantonly inflicted.” (Citation omitted.) City of Winder v. Girone, 265 Ga. 723, 724 (2) (462 S.E.2d 704) (1995). In Rice v. Oaks Investors II, 292 Ga.App. 692, 693-694 (1) (666 S.E.2d 63) (2008), the defendant was entitled to a directed verdict where, notwithstanding evidence that the defendants were negligent per se in failing to properly enclose the pool in which the ten-year-old decedent drowned, the child’s own negligence was the sole proximate cause of her death because the risk of swimming in the pool was obvious as a matter of law. Similarly, notwithstanding whether a defendant breached a duty to care for or supervise a decedent, the decedent’s assumption of the risk of injury may bar recovery. See Sayed v. Azizullah, 238 Ga.App. 642, 643-644 (519 S.E.2d 732) (1999) (finding no need to reach the issue [342 Ga.App. 255] of whether a duty was owed by the defendant to care for the 17-year-old decedent because the decedent was charged with appreciating the risk of swimming in the lake as a matter of law, and he voluntarily assumed that risk); Riley v. Brasunas, 210 Ga.App. 865, 868 (2) (438 S.E.2d 113) (1993) (any failure of the defendant to exercise the duty of an ordinary responsible guardian in watching over the seven-year-old child, who was injured using a trampoline, could not be the proximate cause of the child’s injuries where the child knowingly exposed himself to the obvious danger). See also Bourn v. Herring, 225 Ga. at 69-70 (2) (as the decedent, who was over 14 years old, was chargeable with diligence for his own safety against palpable and manifest peril, plaintiff could not recover against defendants for failure to exercise ordinary care in supervising the decedent in and around the lake in which he drowned).
As Appellants show, a decedent’s decision to enter a body of water with awareness of the physical circumstances is not necessarily determinative of whether the decedent assumed the risk of drowning. For example, the breach of a duty to provide statutorily required safety equipment may be ” inextricable from the proximate cause of the damage.” (Citation and punctuation omitted.) Holbrook v. Exec. Conference Center, 219 Ga.App. 104, 107 (2) (464 S.E.2d 398) (1995) (finding that a jury could determine that the absence of statutorily mandated safety equipment was the proximate cause of the decedent’s drowning in the defendant’s pool). See Alexander v. Harnick, 142 Ga.App. 816, 817 (2) (237 S.E.2d 221) (1977) (where the decedent drowned after she jumped from the defendant’s houseboat into the water in an attempt to rescue her dog, and the defendant did not have any throwable life preservers on board, nor readily accessible life vests, as required by law, ” a jury would not be precluded [802 S.E.2d 442] from finding that the absence of the safety equipment was the proximate cause of the decedent’s death merely because she entered the water voluntarily” ). And in premises liability actions, the general rule is ” that owners or operators of nonresidential swimming facilities owe an affirmative duty to exercise ordinary and reasonable care for the safety and protection of invitees swimming in the pool.” Walker v. Daniels, 200 Ga.App. 150, 155 (1) (407 S.E.2d 70) (1991).
Appellants do not show, however, that Oglethorpe was under a statutory or common law duty to provide safety equipment to its students during an excursion to the beach, or that the ocean is analogous to a nonresidential swimming pool. Nor can we conclude that Oglethorpe became an insurer for the safety of its students by undertaking a study-abroad program, or that it was responsible for the peril encountered by Downes in that it transported him to the beach. Compare Alexander v. Harnick, 142 Ga.App. at 817 (3) (an issue of fact remained as to whether, by taking decedent onto the water without the statutorily required safety equipment, defendant helped to create her peril). Because he was a competent adult, Downes would have appreciated the specific risk of drowning posed by entering a body of water so inherently dangerous as the Pacific Ocean. As Downes voluntarily did so, Oglethorpe established that he assumed that risk. Although Downes’s death was undeniably tragic, we are constrained to conclude that the trial court correctly granted Oglethorpe’s motion for summary judgment.
2. The Appellants’ other claims of error are moot.
Judgment affirmed.
Andrews and Rickman, JJ., concur.
Notes:
[1]The evidence showed that ” [a] rip current is a strong outflow or stream of water usually beginning at the beach, moving perpendicular to the beach, beginning with the neck and then terminating at some point beyond the surf line[.]”
[2]Fletemeyer’s testimony is not explicit as to why pocket beaches are dangerous to swimmers, although, in the context of the line of questioning, his testimony implies that the physical characteristics of pocket beaches are associated with the formation of rip currents.
[3]The evidence did not show that Playa Ventanas, in particular, had an unusually high number of drownings.
[4]The Appellants also contend that the trial court erred in granting Oglethorpe’s motion for summary judgment (1) because Oglethorpe owed a duty to exercise ordinary care for the safety of its students in the planning and implementation of its study-abroad program, and material issues of fact remain regarding Oglethorpe’s negligence, (2) the exculpatory clause in the release agreement signed by Downes is not enforceable, and (3) gross negligence cannot be waived by an exculpatory clause, and material issues of fact remain as to whether Oglethorpe was grossly negligent.
The one group of people who never sign a release and to whom you have no defenses are spectators. Here a spectator was injured during a bicycle race.
Posted: February 25, 2019 Filed under: Cycling, New York, Racing | Tags: Bicycle Race, Cycling, deposition, duty to plaintiff, injuries, Insurance, organizer, participants, Recreation, sanctioned, Signs, Spectator, Spectators, sponsor, Summary judgment, supervise, USA Cycling, USA Cycling Inc. Leave a commentIn this case, the plaintiff attempted to bring in USA Cycling, Inc. Spectators are always at risk, and defendants have little they can do to keep from getting sued except fencing in most cases.
Levine v USA Cycling, Inc., 2018 N.Y. Misc. LEXIS 6063; 2018 NY Slip Op 33177(U)
State: New York: Supreme Court of New York, Kings County
Plaintiff: Steven Levine
Defendant: USA Cycling, Inc. & Kissena Cycling Club
Plaintiff Claims:
Defendant Defenses: Sponsor, now in control of event
Holding: For the defendants
Year: 2018
Summary
Plaintiff Cyclists riding inside the race course was injured when a racer struck him. The plaintiff sued the club that put on the event and USA Cycling, Inc. that sanctioned the event. USA Cycling moved for summary judgment arguing it owed no duty to the plaintiff because it had no control over and did not do anything other than sanction the race.
Facts
In the underlying matter, the plaintiff seeks to recover for personal injuries allegedly sustained while cycling in Prospect Park, Brooklyn, New York on June 14, 2014. At the same time the plaintiff was cycling as a recreational activity, a cycling event was taking place in the same area of Prospect Park. The plaintiff was cycling the same route as those participating in the event when he collided with another cyclist who was a participant in the bike race.
As a result of injuries sustained by the plaintiff, which included a fractured and displaced clavicle that required surgical intervention….
Analysis: making sense of the law based on these facts.
The defendant USA Cycling was brought into the case to possibly add money to the pot that might be available to the defendant. USA Cycling argued that because they did not own, control or have anything to do with the race other than to sponsor the race for a fee, they could not be held liable for anything that happened.
The court distilled the plaintiff’s claims and the defendant’s defenses into a single argument:
At issue in this matter, is whether defendant USA Cycling owed a duty to the plaintiff and by virtue thereof is liable to the plaintiff for the injuries sustained during the bike tour.
USA Cycling argued the following:
… USA Cycling did not coordinate the Prospect Park event; did not control or employ any of the people organizing or managing or working the race; did not select the location of the race nor supervise the race. They did not have any employees or representatives at the race. In addition, they are not the parent company of Kissena Cycling Club nor is Kissena Cycling Club a subsidiary of USA Cycling.
Mr. Sowl testified at his deposition that while USA Cycling sanctions events in the United States they do not run cycling events. Mr. Sowl stated that while there are benefits to a third party such as Kissena Cycling Club for having an event sanctioned by USA Cycling which includes that a cyclist participating in the event can use the results for upgrading their national results and rankings and the third-party event organizers can independently obtain liability insurance for their event through USA Cycling, he nevertheless maintained that they have no involvement in the operation of the race or the design of the course.
It USA Cycling did not owe the defendant a duty, then there was no negligence. The court defined negligence under New York law as:
To establish a prima facie case of negligence, a plaintiff must demonstrate (a) a duty owed by the defendant to the plaintiff, (2) a breach thereof, and (3) injury proximately resulting therefrom. In the absence of a duty, there is no breach and without a breach there is no liability
So, the issue is, did USA Cycling’s involvement in the race rise to the level that it owed a duty to the plaintiff.
The plaintiff argued the involvement was much more than just providing insurance for the race.
They [USA Cycling] collect some fees to compensate for sanctioning the event and provide insurance for the event.
The plaintiff maintains that the defendant did more than just sanction the race as they issued safety guidelines, rule books, post event forms, permits, an event checklist and insurance information to the Kissena Cycling Club, and even received a copy of the incident report.
The court found the actions of USA Cycling did not rise to the level to create a duty to the plaintiff.
USA Cycling is the national governing body for cycling in the United States. They oversee the discipline of road, mountain bike, Cyc-cross, BMS and track cycling. Mr. Sowl testified that except for a few national championships, they do not actually run events. While they sanction events, the events are generally owned and operated by a third party (such as the Kissena Cycling Club). In sanctioning the race at Prospect Park, USA Cycling recognized the event as an official event and the results when considering national rankings. However, while they sanction events they do not sponsor them. The chief referee at the event is an independent contractor who works for the event organizer and not USA Cycling. Mr. Sowl further testified that USA Cycling does not share in any portion of the fees that are generated by the local events.
The court found USA Cycling had no control over the race. This lack of control could not create a duty to the plaintiff.
This Court finds that the plaintiff has not established a prima facie case that the defendant USA Cycling had a duty to the plaintiff, and not having a duty was not negligent, and thus, not liable to the plaintiff. This Court finds that USA Cycling was not responsible for the layout and design of the race course, and all of the safety precautions that were in place on the day of the race were supervised by the employees and volunteers of Kissena Cycling Club. USA Cycling had no involvement in the positioning of the plaintiff, who was a recreational cyclist, and the riders in the race. The fact that USA Cycling sanctioned the race, provided safety guidelines on its website and assisted the local race organizers in obtaining insurance does not result in a finding that they are liable for an incident that occurred in a local race that is fully operated and managed by a local racing club.
So Now What?
Spectators are necessary to any event. They “pay” for the event by either just being there so advertisers can sell to them or paying to enter the facility. Although the facts in this case are slightly different, other cyclists riding, the issues are still the same. Spectators are not a group of people that the event sponsors, owners; officials can create protection from litigation.
If a spectator gets hurt, there is little available to stop their claims.
Here the news was that USA Cycling had so little involvement in the race, they were able to successfully argue they owed no duty to the plaintiff. This argument is similar in all states; however, the definition of duty in each state and the type of involvement could make this difficult in some jurisdictions.
What do you think? Leave a comment.
Copyright 2018 Recreation Law (720) 334 8529
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By Recreation Law Rec-law@recreation-law.com James H. Moss
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Cycling, sanctioned, organizer, summary judgment, deposition, duty to plaintiff, participants, recreation, supervise, injuries, signs,
Get check boxes and initials out of your release!
Posted: February 18, 2019 Filed under: Pennsylvania, Release (pre-injury contract not to sue) | Tags: activities, adhesion, All Terrain Vehicle, Assumption of risk, ATV, Check Box, checkbox, conspicuity, enforceable, Exculpatory clause, font, genuine issue, Gym, initialed, initials, intent of a party, legal right, material fact, Membership, minor child, non-moving, parties, Public Policy, recreational activity, Release, requirements, ride, rushed, signing, Sports, Summary judgment, summary judgment motion, The Lost Trails, The Lost Trails LLC, ticket, Trails, waiver form Leave a commentIf the defendants release did not have a catch all phrase at the bottom of the document the release would be invalid because an initial had not been signed by the plaintiff.
Scott-Moncrieff v. Lost Trails, LLC, 2018 U.S. Dist. LEXIS 146936 *; 2018 WL 4110742
State: Pennsylvania: United States District Court for the Middle District of Pennsylvania
Plaintiff: Patrice Scott-Moncrieff
Defendant: The Lost Trails, LLC, et al
Plaintiff Claims: Plaintiff argues that Plaintiff did not sign a waiver on the date of the accident, and therefore did not waive any liability or assume any risk; that she was rushed and unable to read the original waiver in its entirety; that the waiver is unenforceable as not properly conspicuous; and finally, that because the earlier waiver signed by Plaintiff was “for all time thereafter” it should not be enforced.
Defendant Defenses: Release
Holding: For the defendant
Year: 2018
Summary
The plaintiff did not initial one of the initial boxes on the release she signed. This gave the plaintiff enough of an argument to make an appellate argument. But for a final paragraph that covered the uninitialed box language this release would have failed.
Facts
On October 20, 2013, Plaintiff visited Defendant’s ATV facility for the first time and, prior to using the facility, executed a waiver of liability. Plaintiff did not read the waiver in its entirety prior to signing it, and claims she was rushed during the process. On June 22, 2014, Plaintiff returned to the facility, at which time she alleged suffered injuries when she was thrown from the ATV she was riding.
Plaintiff initialed all of the above provisions. She did not initial paragraph 10 on the next page, however, which states as follows:
l0. Having had ample time and opportunity to raise any concerns or questions that I may have, and having read and understood the information, I certify my acceptance of the aforementioned provisions by signing below.
I am in good health and physical condition. I am voluntarily participating with knowledge that dangers are involved and agree to assume all risks. I also understand that if I am injured or become ill, I agree that Lost Trails LLC, or any of its employees, volunteers or guests will not be held liable should they render medical assistance to me or my minor child.
Despite not specifically initialing paragraph 10, Plaintiff did sign the agreement, indicating her acceptance and understanding of the exculpatory clauses.
Analysis: making sense of the law based on these facts.
The court first reviewed the validity of releases under Pennsylvania law. Pennsylvania has a three-part test to determine if releases are valid.
An exculpatory clause is valid if the following conditions are met: 1) the clause does not contravene public policy; 2) the contract is between parties relating entirely to their own private affairs; and 3) the contract is not one of adhesion. A valid exculpatory clause is only enforceable if “the language of the parties is clear that a person is being relieved of liability for his own acts of negligence.”. A waiver of liability violates public policy only if it involves “a matter of interest to the public or the state. Such matters of interest to the public or the state include the employer-employee relationship, public service, public utilities, common carriers, and hospitals.” The exculpatory clause at issue in this case does not contravene public policy because it does not affect a matter of interest to the public or the state.
The three requirements all evolve around the public policy argument. It is against public policy to have someone sign a release for a necessity, where the bargaining power is not equal or if the contract is so nasty it should not be signed by anyone. A release, a contract, to ride an ATV is valid because it is not a necessity, it is between parties of equal bargaining power and it is voluntary.
The contract meets the third prong of the Topp Copy validity standard because it is not a contract of adhesion. Agreements to participate in “voluntary sporting or recreational activities” are not contracts of adhesion because “[t]he signer is a free agent who can simply walk away without signing the release and participating in the activity, and thus the contract signed under such circumstances is not unconscionable.” “The signer is under no compulsion, economic or otherwise, to participate, much less to sign the exculpatory agreement, because it does not relate to essential services, but merely governs a voluntary recreational activity.”
If the release passes the first three tests, it still must be scrutinized by the court to determine if it clearly relieves the defendant of liability. If the language of the agreement sets forth the requirements necessary for the plaintiff to understand she is liable for her injuries.
Even if an exculpatory clause is facially valid, it is enforceable only if it clearly relieves a party of liability for its own negligence. The following standards guide a court’s determination of the enforceability of an exculpatory clause:
1) the contract language must be construed strictly, since exculpatory language is not favored by the law; 2) the contract must state the intention of the parties with the greatest particularity, beyond doubt by express stipulation, and no inference from words of general import can establish the intent of the parties; 3) the language of the contract must be construed, in cases of ambiguity, against the party seeking immunity from liability; and 4) the burden of establishing the immunity is upon the party invoking protection under the clause.
If the release, or any contract under Pennsylvania law meets those tests it is finally reviewed to determine if both parties clearly understood the intent of the agreement. In the case of a release, both parties must understand that the possible plaintiff is giving up his or her right to sue the possible defendant.
Further, the language of the waiver is clear. In interpreting the language of a contract, courts attempt to ascertain the intent of the parties and give it effect. When a writing is clear and unequivocal, its meaning must be determined by its contents alone. “[I]t is not the function of this Court to re-write it, or to give it a construction in conflict with … the accepted and plain meaning of the language used.” Here, the language of the waiver form is unequivocal in stating the intent that it is binding for all time thereafter.
In this case, the court found the release passed all of the tests.
As such, the Court finds that the October 2013 waiver executed by Plaintiff was in effect during her June 2014 visit to Defendant’s property.1
Once the release was found to be valid the next issue was whether or not the plaintiff had signed the release. The plaintiff argued because she had not initialed an initial box, had not read the release in its entirety
One who is about to sign a contract has a duty to read that contract first.” In the absence of fraud, the failure to read a contract before signing it is “an unavailing excuse or defense and cannot justify an avoidance, modification or nullification of the contract.” (Under Pennsylvania law, the failure to read a contract does not nullify the contract’s validity.)
The court did look at situations were the release was enforceable even if the plaintiff did not read the release or could not read the release.
…(written release found to be enforceable even when the agreement was in English but the plaintiff only read and spoke Spanish, noting that the “[p]laintiff cannot argue that the release language was inconspicuous or somehow hidden from his attention…. Nor did Defendant have an obligation to verify that [p]laintiff had read and fully understood the terms of the document before he signed his name to it.”). In this case, there is no allegation or evidence of fraud, and as such, Plaintiff’s argument is without merit.
The plaintiff argued the release was unenforceable because it was inconspicuous. However, the argument seemed to be based on case law that found waivers to be void then the real facts of this case.
The waiver form in this case was two pages in length, and initialed and signed by Plaintiff. It was not, like the waiver in Beck-Hummel, printed in small font on the back of a tubing ticket. This was a waiver that was reviewed, initialed and signed by Plaintiff. As such, the requirements of conspicuity set forth in Beck-Hummel would not necessarily apply.
The saving language of the release that covered the un-initialed section 10 was. Even though paragraph 10 was not initialed, the heading clearly stated what the document was and the intentions of the parties. The language that covered the un-initialed paragraph 10 was:
I HAVE READ THIS RELEASE OF LIABILITY, WAIVER OF LEGAL RIGHTS AND ASSUMPTIONS OF RISK AND FULLY UNDERSTAND ITS CONTENTS. I SIGN IT WILLINGLY, VOLUNTARILY AND HAVING HAD AMPLE OPPORTUNITY TO RAISE ANY QUESTIONS OR CONCERNS THAT I MAY HAVE, I ACKNOWLEDGE THAT I AM PARTICIPATING VOLUNTARILY WITH KNOWLEDGE THAT DANGERS ARE INVOLVED AND I AGREE TO ASSUME ALL THE RISKS.
The court found that the entire agreement was covered by this saving language above. So, the failure to initial one paragraph was not enough to void the release.
The court summarized its reasoning for finding the release valid and upholding the dismissal of the plaintiff’s claims because of the release.
These clauses are conspicuously set apart, appearing in capital letters, and in the case of the final paragraph, fully set apart, in all bold and all capitals. Further, the agreement itself is titled “Waiver Form” which notifies the reader of the purpose of the form. Plaintiff initialed the paragraphs setting forth the exculpatory clauses,2 and signed the agreement directly underneath the final, most prominent waiver clause. As such, the Court finds that the exculpatory clauses are valid and enforceable.
So Now What?
But for language at the bottom of the release which the court found to cover for the language that was not initialed the release would have failed. It is important to note; the court analysis stated the language that was not initialed was not part of the release.
If you have initial boxes, initials, etc., and one box is not initialed, in Pennsylvania that paragraph that is not initialed or initialed is invalid. Dependent upon the language, your release maybe void, if you don’t have the boxes checked or initialed.
Why use them anyway. Here the court explains why they are unnecessary, the language at the bottom of your release should tie everything together. Once you sign you acknowledge that you have read and understood the entire document. The checkboxes or initials can only hurt you in a release, not help you.
What do you think? Leave a comment.
Copyright 2018 Recreation Law (720) 334 8529
If you like this let your friends know or post it on FB, Twitter or LinkedIn
Author: Outdoor Recreation Insurance, Risk Management and Law
Facebook Page: Outdoor Recreation & Adventure Travel Law
Email: Jim@Rec-Law.US
By Recreation Law Rec-law@recreation-law.com James H. Moss
#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, #RecreationLaw, #OutdoorLaw, #OutdoorRecreationLaw, #SkiLaw,
exculpatory clause, parties, enforceable, material fact, summary judgment, conspicuity, activities, minor child, initialed, non-moving, Trails, signing, Sports, waiver form, font, summary judgment motion, recreational activity, assumption of risk, intent of a party, genuine issue, legal right, requirements, membership, adhesion, rushed, ticket, ride, gym, check box, checkbox, initials, The Lost Trails, The Lost Trails LLC, ATV, All Terrain Vehicle, Release, Public Policy
Levine v USA Cycling, Inc., 2018 N.Y. Misc. LEXIS 6063 *; 2018 NY Slip Op 33177(U)
Posted: February 11, 2019 Filed under: Cycling, Legal Case, New York, Racing | Tags: Bike Race, control, Cycling, deposition, duty, duty to plaintiff, injuries, organizer, participants, Recreation, sanctioned, Signs, Spectator, Summary judgment, supervise, USA Cycling, USA Cycling Inc. Leave a commentLevine v USA Cycling, Inc., 2018 N.Y. Misc. LEXIS 6063 *; 2018 NY Slip Op 33177(U)
Supreme Court of New York, Kings County
December 4, 2018, Decided
515257/15
2018 N.Y. Misc. LEXIS 6063 *; 2018 NY Slip Op 33177(U) **
[**1] STEVEN LEVINE, Plaintiff(s), -against-USA CYCLING, INC. & KISSENA CYCLING CLUB, INC., Defendant(s). Index No: 515257/15
Notice: THIS OPINION IS UNCORRECTED AND WILL NOT BE PUBLISHED IN THE PRINTED OFFICIAL REPORTS.
Cycling, sanctioned, organizer, summary judgment, deposition, duty to plaintiff, participants, recreation, supervise, injuries, signs
Judges: [*1] Present: Hon. Judge Bernard J. Graham, Supreme Court Justice.
DECISION / ORDER
Defendant, USA Cycling, Inc. (“USA Cycling”) has moved, pursuant to CPLR §3212, for an Order awarding summary judgment to the defendant and a dismissal of the plaintiff’s, Steven Levine, (“Mr. Levine”) complaint upon the grounds that the defendant was not negligent, and thus not liable for plaintiff’s injuries as they owed no duty to the plaintiff. The plaintiff opposes the relief sought by the defendant, USA Cycling, and maintains that the latter was negligent in that they had a greater involvement than just sanctioning the race in which the plaintiff was injured, and they failed to properly supervise, maintain and control the race in which the plaintiff who was not a participant in the race was seriously injured.
[**2] Background:
In the underlying matter, the plaintiff seeks to recover for personal injuries allegedly sustained while cycling in Prospect Park, Brooklyn, New York on June 14, 2014. At the same time the plaintiff was cycling as a recreational activity, a cycling event was taking place in the same area of Prospect Park. The plaintiff was cycling the same route as those participating in the event [*2] when he collided with another cyclist who was a participant in the bike race.
As a result of injuries sustained by the plaintiff, which included a fractured and displaced clavicle that required surgical intervention, an action was commenced on behalf of the plaintiff by the filing of a summons and complaint on or about December 21, 2015. Issue was joined by the service of a verified answer by USA Cycling on or about March 15, 2016. The plaintiff served a response to defendant’s Demand for a Verified Bill of Particulars dated March 24, 2016. Depositions of the plaintiff, as well as Todd Sowl, the chief financial officer of USA Cycling, were conducted on September 27, 2016.
In October 2016, the plaintiff moved to amend their complaint to add Kissena Cycling Club Inc., (“Kissena Cycling Club”) as an additional defendant. Kissena Cycling Club did not appear nor answer the complaint, but a default judgment had not been sought against said party.
In April 2017, plaintiff commenced a separate action against Kissena Cycling Club under index # 507066/2017. Plaintiff then filed a Note of Issue in the underlying action on July 25, 2017.
Defendant’s contention (USA Cycling, Inc.):
The defendant, in [*3] moving for summary judgment and a dismissal of the plaintiff’s complaint, maintains that the relief sought herein should be granted because in the absence of a [**3] duty to the plaintiff there cannot be a breach and without a breach they cannot be liable for negligence.
The defendant maintains that USA Cycling merely sanctioned the event that was run by Kissena Cycling Club. They issued a permit to allow Kissena Cycling Club to use the name of USA Cycling during the event.
Defendant asserts that there is no evidence to support an argument as to the existence of a principal-agent relationship between USA Cycling and Kissena Cycling Club nor was there any evidence of control by USA Cycling or consent by USA Cycling to act on its behalf. In addition, there is no written agreement between the two entities.
In support of defendant’s motion, is the affidavit of Todd Sowl in which he stated that USA Cycling did not coordinate the Prospect Park event; did not control or employ any of the people organizing or managing or working the race; did not select the location of the race nor supervise the race. They did not have any employees or representatives at the race. In addition, they are not the parent [*4] company of Kissena Cycling Club nor is Kissena Cycling Club a subsidiary of USA Cycling.
Mr. Sowl testified at his deposition that while USA Cycling sanctions events in the United States they do not run cycling events. Mr. Sowl stated that while there are benefits to a third party such as Kissena Cycling Club for having an event sanctioned by USA Cycling which includes that a cyclist participating in the event can use the results for upgrading their national results and rankings and the third-party event organizers can independently obtain liability insurance for their event through USA Cycling, he nevertheless maintained that they have no involvement in the operation of the race or the design of the course.
[**4] Plaintiff’s contention:
In opposing the motion of USA Cycling for summary judgment, plaintiff maintains that USA Cycling was sufficiently involved with the cycling event that caused plaintiff’s injuries that would result in their owing a duty to the plaintiff. Plaintiff contends that USA Cycling was negligent in their failure to properly operate, supervise, maintain, manage and control the bicycle race.
The plaintiff asserts that USA Cycling by its chief operating officer, Mr. Sowl, [*5] in both his deposition and his supporting affidavit stated that his organization sanctioned the cycling event in Prospect Park. They collect some fees to compensate for sanctioning the event and provide insurance for the event.
The plaintiff maintains that the defendant did more than just sanction the race as they issued safety guidelines, rule books, post event forms, permits, an event checklist and insurance information to the Kissena Cycling Club, and even received a copy of the incident report.
The plaintiff asserts that negligence cases by their very nature do not lend themselves to summary dismissal since the issue of negligence is a question for jury determination. The plaintiff maintains that the proof submitted by USA Cycling does not satisfy their initial burden of establishing the absence of a material issue of fact.
Discussion:
This Court has considered the submissions of counsel’ for the respective parties, the arguments presented herein, as well as the applicable law, in making a determination with respect to the motion by defendant, USA Cycling, for summary judgment and a dismissal of plaintiff’s action.
[**5] At issue in this matter, is whether defendant USA Cycling owed a duty [*6] to the plaintiff and by virtue thereof is liable to the plaintiff for the injuries sustained during the bike tour.
The moving party in a motion for summary judgment bears the initial burden of demonstrating a prima facie entitlement to judgment as a matter of law by submitting sufficient evidence to demonstrate the absence of any material issue of fact (Drago v. King, 283 AD2d 603, 725 NYS2d 859 [2nd Dept. 2001]).
In support of USA Cycling’s motion for summary judgment, the defendant offers the deposition testimony of Todd Sowl, as well as Charles Issendorf, the event director of Kissena Sports Project Inc. d/b/a Kissena Cycling Club, who was deposed on June 14, 2018 in the related action, as well as case law which examined whether a party under similar circumstances would have been found to be negligent and thus liable to an injured party.
To establish a prima facie case of negligence, a plaintiff must demonstrate (a) a duty owed by the defendant to the plaintiff, (2) a breach thereof, and (3) injury proximately resulting therefrom (Akins v Glens Falls City School Dist., 53 N.Y.2d 325, 333, 424 N.E.2d 531, 441 N.Y.S.2d 644 [1981]. In the absence of a duty, there is no breach and without a breach there is no liability (see Light v. Antedeminico, 259 A.D.2d 737, 687 N.Y.S.2d 422; Petito v. Verrazano Contr. Co., 283 A.D.2d 472, 724 N.Y.S.2d 463 [2nd Dept. 2001]).
In determining whether USA Cycling had a duty to the plaintiff, this Court examined the role of USA Cycling and specifically [*7] its involvement in this race, as well as that of the Kissena Cycling Club. The Court further considered the deposition testimony of Todd Sowl as well as Charles Issendorf.
USA Cycling is the national governing body for cycling in the United States. They oversee the discipline of road, mountain bike, Cyc-cross, BMS and track cycling. Mr. Sowl testified that except for a few national championships, they do not actually run events. While [**6] they sanction events, the events are generally owned and operated by a third party (such as the Kissena Cycling Club). In sanctioning the race at Prospect Park, USA Cycling recognized the event as an official event and the results when considering national rankings. However, while they sanction events they do not sponsor them. The chief referee at the event is an independent contractor who works for the event organizer and not USA Cycling. Mr. Sowl further testified that USA Cycling does not share in any portion of the fees that are generated by the local events.
This lack of control over the event by USA Cycling and by contrast the control exhibited by the Kissena Cycling Club is further demonstrated through the deposition testimony of Charles Issendorf. [*8] Mr. Issendorf as the race director for Kissena Cycling Club has been organizing races for fourteen years. Mr. Issendorf characterized his club as more of a social club where its members race together. There are generally thirty races conducted between the months of March and September with the venues being in both Prospect Park and Floyd Bennett Field which is also situated in Brooklyn, New York. Mr. Issendorf testified that he obtains the permit for the subject race directly from the representatives of Prospect Park. Mr. Issendorf is instructed to have certain safety measures implemented at all races. He sets up the course by putting out the safety measures which includes the safety signs that are needed for the race. He also organizes the race marshals, and the pace and follow motorcycles to ensure that there is a motorcycle in both the front and back of each group.1 Mr. Issendorf further testified that Prospect Park has rules in terms of the placement of safety cones and signs that are needed, as well as the race marshals. Kissena Cycling club provides what could be characterized as “lawn signs” and Mr. Issendorf personally places these signs in the grass along the bike route. There [*9] are also traffic safety cones throughout the course that contain a sign which bear the words “caution, bicycle [**7] race”, that are placed there by Mr. Issendorf. The signs are generally situated one hundred meters apart and they are placed at crosswalks, entrances to the park, as well as at high traffic areas where there is a concentration of people. As to the course, the two lanes to the right of a double white line is where the participants are allowed to race. To the left of the double white line is the location of the pedestrian or the recreation lane. There are written instructions on the website of the club which states that at all times the participants are not allowed to enter the pedestrian or recreation lane. The race organizers also make use of a portable PA system at the race in which the chief referee warns the riders to stay to the right of the white right lane, and if they were to cross into the recreation lane it would result in their disqualification.
This Court finds that while USA Cycling sanctioned the race of June 14, 2014, the plaintiff has not sufficiently refuted the assertion and proof offered by USA Cycling that the latter did not organize, direct, control, supervise [*10] or select the venue nor did they have any employees or agents at the cycling event, and thus, had no duty to the plaintiff. Courts have addressed situations that are akin to the case at bar. The Court in Chittick v. USA Cycling Inc., 54 AD3d 625, 863 NYS2d 679 [1st Dept. 2008]), in finding that an award of summary judgment and a dismissal of the action against USA Cycling was warranted, in which spectators were injured during a bicycle race when struck by the rear pace vehicle, determined that USA Cycling had no duty to prevent any negligence involved therein. The Court in Chittick determined that USA Cycling merely sanctioned the race by lending its name to the race. The fact that USA Cycling provided the rule book to the organizer of the race did not impose a duty upon them to enforce any of the rules thereon. There was also no inference drawn as to the existence of a principal-agency relationship between USA Cycling and the race organizer.
[**8] The Court in Megna v. Newsday, Inc., 245 AD2d 494, 666 NYS2d 718 [2nd Dept. 1997], in granting summary judgment to the defendant, determined that the defendant merely sponsored the race in which the injured plaintiff had participated. It was determined that the defendant owed no duty of care to the plaintiff as the defendant was not in any way involved in the design, layout, maintenance [*11] or control of the race course, and was not in a position to assume such control (see also Mongello v. Davos Ski Resort, 224 A.D.2d 502, 638 N.Y.S.2d 166 [2nd Dept. 1966]; Johnson v. Cherry Grove Island Management Inc., 175 AD2d 827, 573 NYS2d 187 [2nd Dept. 1991]).
This Court finds that the plaintiff has not established a prima facie case that the defendant USA Cycling had a duty to the plaintiff, and not having a duty was not negligent, and thus, not liable to the plaintiff. This Court finds that USA Cycling was not responsible for the layout and design of the race course, and all of the safety precautions that were in place on the day of the race were supervised by the employees and volunteers of Kissena Cycling Club. USA Cycling had no involvement in the positioning of the plaintiff, who was a recreational cyclist, and the riders in the race. The fact that USA Cycling sanctioned the race, provided safety guidelines on its website and assisted the local race organizers in obtaining insurance does not result in a finding that they are liable for an incident that occurred in a local race that is fully operated and managed by a local racing club.
Conclusion:
The motion by defendant, USA Cycling, Inc. for summary judgment and a dismissal of plaintiff’s complaint is granted.
[**9] This shall constitute the decision and order of this Court.
Hon. Bernard J. Graham, Justice
Scott-Moncrieff v. Lost Trails, LLC, 2018 U.S. Dist. LEXIS 146936 *; 2018 WL 4110742
Posted: February 11, 2019 Filed under: Legal Case, Pennsylvania, Release (pre-injury contract not to sue) | Tags: activities, adhesion, All Terrain Vehicle, Assumption of risk, ATV, Check Box, checkbox, conspicuity, enforceable, Exculpatory clause, font, genuine issue, Gym, initialed, initials, intent of a party, legal right, material fact, Membership, minor child, non-moving, parties, Public Policy, recreational activity, Release, requirements, ride, rushed, signing, Sports, Summary judgment, summary judgment motion, The Lost Trails, The Lost Trails LLC, ticket, Trails, waiver form Leave a commentScott-Moncrieff v. Lost Trails, LLC, 2018 U.S. Dist. LEXIS 146936 *; 2018 WL 4110742
Scott-Moncrieff v. Lost Trails, LLC
United States District Court for the Middle District of Pennsylvania
August 29, 2018, Decided; August 29, 2018, Filed
CIVIL ACTION NO. 3:16-CV-1105
2018 U.S. Dist. LEXIS 146936 *; 2018 WL 4110742
PATRICE SCOTT-MONCRIEFF, Plaintiff v. THE LOST TRAILS, LLC, et al, Defendants
Subsequent History: Appeal filed, 09/13/2018
exculpatory clause, parties, enforceable, material fact, summary judgment, conspicuity, activities, minor child, initialed, non-moving, Trails, signing, Sports, waiver form, font, summary judgment motion, recreational activity, assumption of risk, intent of a party, genuine issue, legal right, requirements, membership, adhesion, rushed, ticket, ride, gym
Counsel: [*1] For Patrice Scott-Moncrieff, Plaintiff: James W. Sutton, III, LEAD ATTORNEY, LAW OFFICES OF VIASAC & SHMARUK, FEASTERVILLE, PA.
For The Lost Trails, LLC, d/b/a Lost Trails ATV Adventures, Defendant, Cross Claimant, Cross Defendant: John T. McGrath, Jr., Marshall, Dennehey, Warner, Coleman & Goggin, Scranton, PA; Michael J. Connolly, Moosic, PA.
Judges: KAROLINE MEHALCHICK, United States Magistrate Judge.
Opinion by: KAROLINE MEHALCHICK
MEMORANDUM OPINION
Before the Court is a motion for summary judgment filed by Defendant, The Lost Trails, LLC (“Lost Trails”) in this matter. The motion (Doc. 50) was filed on November 14, 2017, together with a brief in support (Doc. 52), and Statement of Facts (Doc. 53). Plaintiff, Patrice Scott-Moncrieff, filed a brief in opposition (Doc. 54) on November 28, 2017, a reply brief (Doc. 55) was filed on December 6, 2017, and a sur reply brief (Doc. 62) was filed on January 17, 2018. This motion is ripe for disposition. For the following reasons, the Court will grant the motion for summary judgment.
I. Factual Background and Procedural History
The factual background is taken from Defendant’s Statements of Undisputed Material Facts (Doc. 53). Where the parties dispute certain facts, [*2] those disputes are noted. In addition, the facts have been taken in the light most favorable to the plaintiff as the non-moving party, with all reasonable inferences drawn in her favor. This is in accordance with the Local Rules of this Court, which state, in pertinent part, as follows:
LR 56.1 Motions for Summary Judgment.
A motion for summary judgment filed pursuant to Fed.R.Civ.P.56, shall be accompanied by a separate, short and concise statement of the material facts, in numbered paragraphs, as to which the moving party contends there is no genuine issue to be tried.
The papers opposing a motion for summary judgment shall include a separate, short and concise statement of the material facts, responding to the numbered paragraphs set forth in the statement required in the foregoing paragraph, as to which it is contended that there exists a genuine issue to be tried.
Statements of material facts in support of, or in opposition to, a motion shall include references to the parts of the record that support the statements.
All material facts set forth in the statement required to be served by the moving party will be deemed to be admitted unless controverted by the statement required to be served by the opposing [*3] party.
Local Rule 56.1 (emphasis added).
To comply with Local Rule 56.1, Plaintiff should (1) clearly and unequivocally admit or deny whether each fact contained in Defendant’s statement of facts is undisputed and/or material, (2) set forth the basis for any denial if any fact is not admitted in its entirety, and (3) provide a citation to the record that supports any such denial. Occhipinti v. Bauer, No. 3:13-CV-1875, 2016 U.S. Dist. LEXIS 136082, 2016 WL 5844327, at *3 (M.D. Pa. Sept. 30, 2016); Park v. Veasie, 2011 U.S. Dist. LEXIS 50682, 2011 WL 1831708, *4 (M.D. Pa. 2011). As such, where Plaintiff disputes a fact set forth by Defendant, but fails to provide a citation to the record supporting their denial, that fact will be deemed to be admitted. “Unsupported assertions, conclusory allegations, or mere suspicions” are insufficient to overcome a motion for summary judgment. Schaar v. Lehigh Valley Health Servs., Inc., 732 F.Supp.2d 490, 493 (E.D.Pa. 2010). In this matter, Plaintiff, though including a statement of fact in her brief in opposition to Defendant’s motion for summary judgment (Doc. 54), does not comply with the local rules and submit a separate statement of material facts in opposition to Defendant’s statement of material facts. Notably, despite being given the opportunity to file a sur-reply brief in this matter, after Defendant raises the issue of Plaintiff’s failure to file a statement of facts in its Reply Brief (Doc. 55), Plaintiff still [*4] did not file a separate statement of fact. As such, the facts set forth in Defendant’s statement of material facts will be deemed admitted.
On October 20, 2013, Plaintiff visited Defendant’s ATV facility for the first time and, prior to using the facility, executed a waiver of liability. (Doc. 50-2, at 4-5; DOC. 53, AT ¶¶ 5, 9). Plaintiff did not read the waiver in its entirety prior to signing it, and claims she was rushed during the process. (Doc. 53, at ¶ 7; Doc. 50-2, at 71). On June 22, 2014, Plaintiff returned to the facility, at which time she alleged suffered injuries when she was thrown from the ATV she was riding. (Doc. 1).
The release from liability signed by Plaintiff on October 20, 2013 reads, in pertinent part, as follows:
In consideration for the opportunity for event participation and utilization of general admission, all facilities, equipment and premises of Lost Trails, LLC (LT), North American Warhorse Inc, (NAW) Theta Land Corp. (TLC), 1000 Dunham Drive LLC (DD), and their respective affiliates, members, agents, employees, heirs and assigns and other associates in furtherance of the sport of Off-Road Riding, racing and any other activities, scheduled or unscheduled, [*5] (hereinafter collectively called “Off-Roading.”) This Waiver shall commence on the date first signed and shall remain binding for all time thereafter.
By signing this document, I hereby understand and agree for me and/or my minor child to this Release of Liability, Wavier of Legal rights and Assumption of Risk and to the terms hereof as follows:
2. I hereby RELEASE AND DISCHARGE LT, NAW, TLC, DD and all related parties, event volunteers, company officers, directors, elected officials, agents, employees, and owners of equipment, the land used for Off-Roading activities and any owners of adjourning lands to the premises (hereinafter collectively referred to as “Released parties”) from any and all liability claims, demands or causes of action that I, my minor child or my representatives and my heirs may hereafter have for injuries, loss of life, and all other forms of damages arising out of my voluntary participation in Off-Roading activities.
3. I understand and acknowledge that Off-Road riding and racing activities have inherent dangers that no amount of care, caution, instruction or expertise can eliminate and I EXPRESSLY AND VOLUNTARILY ASSUME ALL RISK OF DEATH OR PERSONAL INJURY [*6] OR OTHER FORMS OF DAMAGES SUSTAINED WHILE PARTICIPATING IN OFF-ROADING ACTIVITIES WHETHER OR NOT CAUSED BY THE NEGLIGENCE OF THE RELEASE PARTIES.
4. I further agree that I WILL NOT SUE OR OTHERWISE MAKE A CLAIM on behalf of me and/or on behalf of my minor child, against the Released Parties for damages or other losses sustained as a result of my participation in Off-Roading activities.
5. I also agree to INDEMNIFY AND HOLD THE RELEASED PARTIES HARMLESS from all claims, judgments and costs, including attorneys’ fees, incurred in the connection with any action brought against them, jointly or severally, as a result of my or my minor child’s participation in “Off-Roading” activities.
6. I take full responsibility for, and hold harmless Released Parties for any injury, property damage, or death that I or my minor child may suffer or inflict upon others .or their property as a result of my engaging in Off-Roading activities.
7. I further represent that I am at least 18 years of age, or that as the parent or (adult) legal guardian, I waive and release any and all legal rights that may accrue to me, to my minor child or to the minor child for whom I am (adult) legal guardian, as the result of [*7] any injury or damage that my minor child, the minor child for whom I am (adult) legal guardian, or I may suffer while engaging in Off-Roading activities.
8. I hereby expressly recognize that this Release of Liability, Waiver of Legal Rights and Assumption of Risks is a contract pursuant to which I have released any and all claims against the Released Parties resulting from participation in Off-Roading activities including any claims related to the negligence of the Released Parties by any of the undersigned.
9. I further expressly agree that the foregoing Release of Liability, Waiver of Legal Rights and Assumption of Risks is intended to be as broad and inclusive as is permitted by law of the province or state in which services, materials and/or equipment are provided and the course of business is conducted, and that if any portion thereof is held invalid, it is agreed that the balance shall, notwithstanding, continue in full legal force and effect. I agree that, should any claim or action arise from my participation as described herein, including any issue as to the applicability of this Release or any provision contained within it, proper Jurisdiction and Venue will lie only in Monroe [*8] County, Pennsylvania and I waive Jurisdiction and Venue anywhere else.
Plaintiff initialed all of the above provisions. She did not initial paragraph 10 on the next page, however, which states as follows:
l0. Having had ample time and opportunity to raise any concerns or questions that I may have, and having read and understood the information, I certify my acceptance of the aforementioned provisions by signing below.
I am in good health and physical condition. I am voluntarily participating with knowledge that dangers are involved and agree to assume all risks. I also understand that if I am injured or become ill, I agree that Lost Trails LLC, or any of its employees, volunteers or guests will not be held liable should they render medical assistance to me or my minor child.
(Doc. 54-1, at 21).
Despite not specifically initialing paragraph 10, Plaintiff did sign the agreement, indicating her acceptance and understanding of the exculpatory clauses. (Doc. 54-1).
II. Legal Standard
Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment should be granted only if “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A fact is “material” only [*9] if it might affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). A dispute of material fact is “genuine” if the evidence “is such that a reasonable jury could return a verdict for the non-moving party.” Anderson, 477 U.S. at 248. In deciding a summary judgment motion, all inferences “should be drawn in the light most favorable to the non-moving party, and where the non-moving party’s evidence contradicts the movant’s, then the non-movant’s must be taken as true.” Pastore v. Bell Tel. Co. of Pa., 24 F.3d 508, 512 (3d Cir. 1994).
A federal court should grant summary judgment “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Farrell v. Planters Lifesavers Co., 206 F.3d 271, 278 (3d Cir. 2000). In deciding a motion for summary judgment, the court’s function is not to make credibility determinations, weigh evidence, or draw inferences from the facts. Anderson, 477 U.S. at 249. Rather, the court must simply “determine whether there is a genuine issue for trial.” Anderson, 477 U.S. at 249.
The party seeking summary judgment “bears the initial responsibility of informing the district court of the basis for its motion,” and demonstrating the absence of a genuine dispute of any material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). If the movant makes [*10] such a showing, the non-movant must go beyond the pleadings with affidavits or declarations, answers to interrogatories or the like in order to demonstrate specific material facts which give rise to a genuine issue. Fed. R. Civ. P. 56(c); Celotex, 477 U.S. at 324. The non-movant must produce evidence to show the existence of every element essential to its case, which it bears the burden of proving at trial, because “a complete failure of proof concerning an essential element of the nonmoving party’s case necessarily renders all other facts immaterial.” Celotex, 477 U.S. at 323. Furthermore, mere conclusory allegations and self-serving testimony, whether made in the complaint or a sworn statement, cannot be used to obtain or avoid summary judgment when uncorroborated and contradicted by other evidence of record. See Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888, 110 S. Ct. 3177, 111 L. Ed. 2d 695 (1990); see also Thomas v. Delaware State Univ., 626 F. App’x 384, 389 n.6 (3d Cir. 2015) (not precedential) (“[U]nsupported deposition testimony, which is contradicted by the record, is insufficient to defeat summary judgment.”); NLRB v. FES, 301 F.3d 83, 95 (3d Cir. 2002) (“[The plaintiff’s] testimony . . . amounts to an unsupported, conclusory assertion, which we have held is inadequate to satisfy the movant’s burden of proof on summary judgment.”).
As this jurisdiction of this Court is sounded in the diversity of the parties pursuant to 28 U.S.C. § 1332(a), Pennsylvania substantive [*11] law will apply. Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938).
III. Discussion
Defendant submits that it is entitled to judgment in its favor because Plaintiff executed a valid waiver of all liability prior to ever engaging in any recreational activities on Defendant’s property; because such releases and waivers are recognized under Pennsylvania law; and because within the waiver, Plaintiff specifically acknowledged that she was assuming all of the risks associated with these activities. (Doc. 52, at 2). In response, Plaintiff argues that Plaintiff did not sign a waiver on the date of the accident, and therefore did not waive any liability or assume any risk; that she was rushed and unable to read the original waiver in its entirety; that the waiver is unenforceable as not properly conspicuous; and finally, that because the earlier waiver signed by Plaintiff was “for all time thereafter” it should not be enforced. (Doc. 54).
A. The Exculpatory Clause is Valid
An exculpatory clause is valid if the following conditions are met: 1) the clause does not contravene public policy; 2) the contract is between parties relating entirely to their own private affairs; and 3) the contract is not one of adhesion. Evans v. Fitness & Sports Clubs, LLC, No. CV 15-4095, 2016 U.S. Dist. LEXIS 133490, 2016 WL 5404464, at *3 (E.D. Pa. Sept. 28, 2016); [*12] Topp Copy Prods., Inc. v. Singletary, 533 Pa. 468, 626 A.2d 98, 99 (Pa. 1993). A valid exculpatory clause is only enforceable if “the language of the parties is clear that a person is being relieved of liability for his own acts of negligence.” Id. A waiver of liability violates public policy only if it involves “a matter of interest to the public or the state. Such matters of interest to the public or the state include the employer-employee relationship, public service, public utilities, common carriers, and hospitals.” Seaton v. E. Windsor Speedway, Inc., 400 Pa. Super. 134, 582 A.2d 1380, 1382 (Pa. Super. Ct. 1990); see also Kotovsky v. Ski Liberty Operating Corp., 412 Pa. Super. 442, 603 A.2d 663, 665 (Pa. Super. Ct. 1992). The exculpatory clause at issue in this case does not contravene public policy because it does not affect a matter of interest to the public or the state. See Kotovsky, 603 A.2d at 665-66 (holding that releases did not violate public policy because “[t]hey were [in] contracts between private parties and pertained only to the parties’ private rights. They did not in any way affect the rights of the public.”). Thus, the exculpatory clause meets the first two prongs of the Topp Copy standard for validity.
The contract meets the third prong of the Topp Copy validity standard because it is not a contract of adhesion. Agreements to participate in “voluntary sporting or recreational activities” are not contracts of adhesion because “[t]he signer is a free agent [*13] who can simply walk away without signing the release and participating in the activity, and thus the contract signed under such circumstances is not unconscionable.” Chepkevich v. Hidden Valley Resort, L.P., 607 Pa. 1, 2 A.3d 1174, 1190-91 (Pa. 2010). “The signer is under no compulsion, economic or otherwise, to participate, much less to sign the exculpatory agreement, because it does not relate to essential services, but merely governs a voluntary recreational activity.” Id. The Agreement at issue here is not a contract of adhesion because it is a contract to participate in voluntary recreational activities. The Agreement does not relate to an essential service, and Plaintiff was free to engage in the activity, or not, as she wished. She was under no compulsion to do so. See Chepkevich, supra; see also Hinkal v. Pardoe, 2016 PA Super 11, 133 A.3d 738, 741-2 (Pa. Super. Ct. 2016) (en banc), appeal denied, 636 Pa. 650, 141 A.3d 481 (Pa. 2016) (citing the “thorough and well-reasoned opinion” of the trial court, which held that the plaintiff’s gym membership agreement was not a contract of adhesion because exercising at a gym is a voluntary recreational activity and the plaintiff was under no compulsion to join the gym). The Agreement meets all three prongs of the Topp Copy standard for validity, and thus the exculpatory clause is facially valid.
B. The Exculpatory Clause is Enforceable
Even if an exculpatory clause is [*14] facially valid, it is enforceable only if it clearly relieves a party of liability for its own negligence. Evans v. Fitness & Sports Clubs, LLC, No. CV 15-4095, 2016 U.S. Dist. LEXIS 133490, 2016 WL 5404464, at *5 (E.D. Pa. Sept. 28, 2016). The following standards guide a court’s determination of the enforceability of an exculpatory clause:
1) the contract language must be construed strictly, since exculpatory language is not favored by the law; 2) the contract must state the intention of the parties with the greatest particularity, beyond doubt by express stipulation, and no inference from words of general import can establish the intent of the parties; 3) the language of the contract must be construed, in cases of ambiguity, against the party seeking immunity from liability; and 4) the burden of establishing the immunity is upon the party invoking protection under the clause.
The Court now turns to Plaintiff’s arguments against the enforceability of the exculpatory clause.
1. Plaintiff’s first waiver is enforceable, including the clause “for all time thereafter.”
Plaintiff submits that the waiver she executed in October 2013 did not apply to her visit to Defendant on June 22, 2014, because “it is uncontroverted that the Defendant has a policy that dictates all [*15] riders must sign a waiver every time they ride an ATV at their park” (Doc. 54, at 4), and Plaintiff did not sign a waiver when she visited the park in June 2014. Defendant counters that Plaintiff is misconstruing the record in making this assertion. (Doc. 55, at 2). Specifically, Defendant submits that the testimony cited by Plaintiff is that of a former maintenance man who has nothing to do with policy or procedure at Defendant’s property, and further, that he neither testifying as a representative of, nor acting on behalf of, Lost Trails, LLC. (Doc. 55-1, at 4). The testimony offered by the Plaintiff on this issue is that of Matthew Anneman, who testified as follows:
Q: Everybody that goes there is supposed sign the waiver before they go out on the trails, is that fair to say?
Q: Do you know if Miss Moncrieff signed a waiver before she went on the trail that day?
A: Yes. It is imperative that everybody who comes to ride on that mountain is to fill out a waiver.
Q: So every single time somebody comes to the facility, before they go out there, they go in and sign a waiver.
Q: And you’re not involved in that part of it, the sign in, and the waiver.
A: No, no. Leslie or one [*16] of her employees would work the front desk.
(Doc. 54-1, at 12; Anneman Dep. at 36).
The Court finds this testimony to have little to no bearing on the validity and applicability of the October 2013 waiver. Even construing the evidence in the record in Plaintiff’s favor, Mr. Anneman’s testimony does not change the fact Plaintiff did sign a waiver in October 2013, one which indicated that it “shall remain binding for all time thereafter.” (Doc. 54-1, at 20) (emphasis added). Nothing in the record before the Court indicates that Mr. Anneman was responsible for either policy at Defendant’s facility, or in any way even involved with the waiver process. Further, the language of the waiver is clear. In interpreting the language of a contract, courts attempt to ascertain the intent of the parties and give it effect. Sycamore Rest. Grp., LLC v. Stampfi Hartke Assocs., LLC, 2017 Pa. Super. 221, 174 A.3d 651, 656 (2017); LJL Transp., Inc. v. Pilot Air Freight Corp., 599 Pa. 546, 962 A.2d 639, 648 (2009). When a writing is clear and unequivocal, its meaning must be determined by its contents alone. Synthes USA Sales, LLC v. Harrison, 2013 Pa. Super. 324, 83 A.3d 242, 250-51 (2013); Murphy v. Duquesne Univ. of the Holy Ghost, 565 Pa. 571, 591, 777 A.2d 418, 429 (2001) (citations and quotation marks omitted). “[I]t is not the function of this Court to re-write it, or to give it a construction in conflict with … the accepted and plain meaning of the language used.” Id.; citing Robert F. Felte, Inc. v. White, 451 Pa. 137, 144, 302 A.2d 347, 351 (1973) (citation omitted). Here, the language of the waiver form (Doc. 54-1, [*17] at 20) is unequivocal in stating the intent that it is binding for all time thereafter. As the Pennsylvania Supreme Court has stated,
The word “all” needs no definition; it includes everything, and excludes nothing. There is no more comprehensive word in the language, and as used here it is obviously broad enough to cover liability for negligence. If it had been the intention of the parties to exclude negligent acts they would have so written in the agreement. This paragraph of the lease is clear and unambiguous. No rules of construction are required to ascertain the intention of the parties.
Topp Copy Prods. v. Singletary, 533 Pa. 468, 472, 626 A.2d 98, 100 (1993); citing Cannon v. Bresch, 307 Pa. 31, 34, 160 A. 595, 596 (1932).
As such, the Court finds that the October 2013 waiver executed by Plaintiff was in effect during her June 2014 visit to Defendant’s property.1
2. Plaintiff’s argument that she was rushed and unable to read the original waiver in its entirety is without merit.
Plaintiff next argues that, should the Court find that the 2013 waiver was in effect in June 2014, she was rushed and therefore did not have time to read the waiver before signing it. “The law of Pennsylvania is clear. One who is about to sign a contract has a duty to read that contract [*18] first.” Hinkal v. Pardoe, 2016 Pa. Super. 11, 133 A.3d 738, 743, appeal denied, 636 Pa. 650, 141 A.3d 481 (2016); In re Estate of Boardman, 2013 PA Super 300, 80 A.3d 820, 823 (Pa.Super.2013); citing Schillachi v. Flying Dutchman Motorcycle Club, 751 F.Supp. 1169, 1174 (E.D.Pa.1990) (citations omitted). In the absence of fraud, the failure to read a contract before signing it is “an unavailing excuse or defense and cannot justify an avoidance, modification or nullification of the contract.” Germantown Sav. Bank v. Talacki, 441 Pa.Super. 513, 657 A.2d 1285, 1289 (1995) (citing Standard Venetian Blind Co. v. American Emp. Ins. Co., 503 Pa. 300, 469 A.2d 563, 566 note (1983)); see also Wroblewski v. Ohiopyle Trading Post, Inc., No. CIV.A. 12-0780, 2013 U.S. Dist. LEXIS 119206, 2013 WL 4504448, at *7 (W.D. Pa. Aug. 22, 2013) (Under Pennsylvania law, the failure to read a contract does not nullify the contract’s validity.); Arce v. U-Pull-It Auto Parts, Inc., No. 06-5593, 2008 U.S. Dist. LEXIS 10202, 2008 WL 375159, at *5-9 (E.D.Pa. Feb.11, 2008) (written release found to be enforceable even when the agreement was in English but the plaintiff only read and spoke Spanish, noting that the “[p]laintiff cannot argue that the release language was inconspicuous or somehow hidden from his attention…. Nor did Defendant have an obligation to verify that [p]laintiff had read and fully understood the terms of the document before he signed his name to it.”). In this case, there is no allegation or evidence of fraud, and as such, Plaintiff’s argument is without merit.
3. The waiver is properly conspicuous.
Finally, Plaintiff avers that summary judgment should be denied because the waiver was not properly conspicuous, and relies on the Pennsylvania Superior Court’s decision in Beck-Hummel in making [*19] this assertion. The Beck-Hummel court addressed the enforceability of a waiver of liability printed on the back of a tubing ticket. The exculpatory language appeared in a font that was “just barely readable,” and smaller than the font used for some other portions of the ticket. Id. at 1274-75. The Beck-Hummel court looked to the conspicuousness of the waiver of liability as a means of establishing whether or not a contract existed, setting forth three factors to consider in determining conspicuousness: 1) the waiver’s placement in the document; 2) the size of the waiver’s font; and 3) whether the waiver was highlighted by being printed in all capital letters or a different font or color from the remainder of the text. Beck-Hummel, 902 A.2d at 1274. After considering these factors, the Beck-Hummel court could not conclude as a matter of law that the exculpatory clause was enforceable because the language of the ticket was not sufficiently conspicuous as to put the purchaser/user on notice of the waiver. Id.at 1275.
However, in a more recent Pennsylvania Superior Court case, the court held that, as in the case presently before this Court, where the exculpatory clause was part of a signed contract between the parties, the requirements of [*20] conspicuity set forth in Beck-Hummel would not necessarily apply. In Hinkal v. Pardoe, the en banc Superior Court of Pennsylvania examined whether the Beck-Hummel conspicuity requirements for the enforcement of exculpatory clauses applies to signed valid written contracts. Hinkal v. Pardoe, 2016 Pa. Super. 11, 133 A.3d 738, 743-745, appeal denied, 636 Pa. 650, 141 A.3d 481 (2016). In Hinkal, the plaintiff had signed a membership agreement with Gold’s Gym that contained a waiver of liability for negligence claims on the back page. Id. at 741. The Hinkal court found the plaintiff’s comparison of her case to Beck-Hummel “inapposite” because, unlike a waiver printed on the back of a tubing ticket that did not require a signature; the gym waiver was part of a signed agreement. Id. at 744-45. Further, the court noted that conspicuity is generally not required to establish the formation of a contract, but “has been resorted to as a means of proving the existence or lack of a contract,” where it is unclear whether a meeting of the minds occurred, and imposing such a requirement would allow a properly executed contract to be set aside through one party’s failure to do what the law requires – reading a contract. Id. at 745. The Hinkal court concluded that the waiver of liability was valid and enforceable because [*21] the plaintiff had signed the agreement. Similarly, in Evans v. Fitness & Sports Clubs, LLC, the District Court determined that the exculpatory clauses contained in a fitness club’s membership agreements were valid and enforceable where the plaintiff had signed both a membership and personal training agreement, including an acknowledgement that the plaintiff had read and understood the entire agreement, including the release and waiver of liability, appears directly above the plaintiff’s signature on the first page of each agreement. Evans v. Fitness & Sports Clubs, LLC, No. CV 15-4095, 2016 U.S. Dist. LEXIS 133490, 2016 WL 5404464, at *6 (E.D. Pa. Sept. 28, 2016).
The Court finds the agreement at issue in this case to be far more in line with the waivers discussed by the Pennsylvania Superior and Eastern District of Pennsylvania courts in Hinkal and Evans. The waiver form in this case was two pages in length, and initialed and signed by Plaintiff. It was not, like the waiver in Beck-Hummel, printed in small font on the back of a tubing ticket. This was a waiver that was reviewed, initialed and signed by Plaintiff. As such, the requirements of conspicuity set forth in Beck-Hummel would not necessarily apply. Hinkal v. Pardoe, 133 A.3d at 743-745.
Even if those conspicuity requirements applied, however [*22] the exculpatory clauses in the Waiver Form would still be enforceable. The document is titled, in larger font, bold, underlined, and all capital letters “LOST TRAILS ATV ADVENTURES WAIVER FORM.” The language specifically indicating release and discharge, assumption of the risk, an agreement not to sue, and indemnification, are set of in all capitals in the numbered paragraphs, and were acknowledged by Plaintiff initialing each paragraph. (Doc. 54-1, at 20). Immediately above the signature line, in all capital bold letters, the release reads:
I HAVE READ THIS RELEASE OF LIABILITY, WAIVER OF LEGAL RIGHTS AND ASSUMPTIONS OF RISK AND FULLY UNDERSTAND ITS CONTENTS. I SIGN IT WILLINGLY, VOLUNTARILY AND HAVING HAD AMPLE OPPORTUNITY TO RAISE ANY QUESTIONS OR CONCERNS THAT I MAY HAVE, I ACKNOWLEDGE THAT I AM PARTICIPATING VOLUNTARILY WITH KNOWLEDGE THAT DANGERS ARE INVOLVED AND I AGREE TO ASSUME ALL THE RISKS.
These clauses are conspicuously set apart, appearing in capital letters, and in the case of the final paragraph, fully set apart, in all bold and all capitals. Further, the agreement itself is titled “Waiver Form” which notifies the reader of the purpose of the form. [*23] Plaintiff initialed the paragraphs setting forth the exculpatory clauses,2 and signed the agreement directly underneath the final, most prominent waiver clause. As such, the Court finds that the exculpatory clauses are valid and enforceable. See Evans, 2016 U.S. Dist. LEXIS 133490, 2016 WL 5404464, at n. 6.
IV. Conclusion
For the reasons set forth above, the undisputed material facts in the record establish that Defendant is entitled to summary judgment. Viewing the record in light most favorable to the Plaintiff, the Court finds that the exculpatory clauses at issue are valid and enforceable. As such, Defendant’s motion will be granted, and judgment will be entered in favor of Defendant.
United States Magistrate Judge
ORDER
AND NOW, this 29th day of August, 2018, IT IS HEREBY ORDERED that for the reasons set forth in the memorandum filed concurrently with this Order, Defendant’s motion for summary judgment (Doc. 50) is GRANTED, and judgment is entered in favor of Defendant. The Clerk of Court is directed to CLOSE this matter.
United States Magistrate Judge
Lawsuit because a ski helmet failed to protect a plaintiff from concussion.
Posted: February 11, 2019 Filed under: Skiing / Snow Boarding, Wisconsin | Tags: admissibility, ASTM, centimeters, Chinstrap, Concussion, contends, design defect, drop, expert testimony, exposed, Head injury, helmet, inadmissible, injuries, instructions, K2, loss of consortium, Manufacturing, measured, move to strike, opined, parties, plaintiffs', Product liability, requires, simulation, Ski, Ski Helmet, speculation, Summary judgment, testing, time of an accident, Warning, warranty Leave a commentIs this, the beginning of an avalanche of lawsuits for concussions from people wearing helmets?
Rogers v. K2 Sports, LLC, 2018 U.S. Dist. LEIS 217233
State: Wisconsin: United States District Court for the Western District of Wisconsin
Plaintiff: Steven Scott Rogers, by his guardian, Tracy Rogers, Tracy Rogers, Samba Health Benefit Plan, Blue Cross Blue Shield of Wisconsin, and State of Wisconsin Department of Health Services
Defendant: K2 Sports, LLC, Lexington Insurance Company, and AIG Europe Limited
Plaintiff Claims: negligence, strict product liability, and breach of warranty
Defendant Defenses:
Holding: Mostly for the Plaintiff
Year: 2018
Summary
This appears to be the first lawsuit over a ski helmet not protecting the skier from a brain injury. This is just a motion hearing. However, it provides some insight into the claims and defenses that will spring up in the future if people continue to believe that human-powered recreation helmets are going to protect against concussions and fatal head injuries.
Facts
Scott wore a K2 Phase 08 helmet while skiing with his stepson Coby at the Afton Alps Ski Area in Washington County, Minnesota, on New Year’s Eve 2015. Around 8:40 p.m., Scott and Coby skied down a beginner’s run called Nancy’s Nursery. Scott fell about halfway down the hill near some small mounds called “rollers.” Coby was in front of Scott and did not witness the fall. Another skier did witness the fall, but he was not able to recall any details about it, except that the fall did not seem unusual.
The fall left Scott unconscious and bleeding from his left ear. Scott was taken by ambulance to a hospital, where doctors conducted tests including a CT scan of Scott’s head. The accident caused brain hemorrhages and fractured Scott’s skull, left clavicle, and numerous ribs along Scott’s left side. As a result of permanent brain damage caused by the accident, Scott now lives at a VA hospital where he receives round-the-clock care.
The K2 helmet was certified as compliant with the standards of ASTM International, which is an organization that develops and [*4] publishes technical standards for a wide range of products.2 Compliance with ASTM standards is voluntary. The K2 helmet has three layers. The exterior layer is a hard-plastic shell. The shell is lined with an Expanded Polystyrene (EPS) energy-attenuating layer, which is supposed to absorb and dissipate shock from a blow to the head. The third layer is a comfort liner that can be adjusted to fit on the user’s head. After Scott’s accident, the lower left rear of the exterior shell was cracked. And, in the same area, the shock-absorbing EPS layer was flattened, and chunks of the EPS were missing.
Analysis: making sense of the law based on these facts.
This was a motion’s decision. A Motion for summary judgment was filed by the defendant who was denied and motions to exclude witnesses, expert witness testimony, etc., which were denied in part and granted in part for both parties.
The main issue is, it is a lawsuit against the manufacturer of a human-powered recreation helmet manufacturer for a concussion.
The motions covered a broad range of topics; this discussion will look at the important points from an outdoor recreation perspective.
The court started by looking at the Wisconsin Product Liability statute.
Wisconsin product liability law is codified under Wisconsin Statute § 895.047.5 A product liability claim has five elements: (1) the product was defective; (2) the defect rendered the product unreasonably dangerous; (3) the defect existed when the product left the control of the manufacturer; (4) the product reached the consumer without substantial change; and (5) the defect caused the claimant’s damages.
The substantial change requirement is interesting. That reasoning provides a defense for the manufacturer if the retailer makes modifications to the helmet for a sale. At the same time, it is how all people in the chain of custody of a product are held liable for a product liability claim. Any of the people in the chain of custody, manufacture, distributor, retailers could have identified the defect and prevented the defective product from reaching the consumer.
Generally, product liability claims are one of three types: “design defects, manufacturing defects, and warning defects.”
Design defects are levied when the product is designed badly from the beginning. Although there are a lot of design defect claims, there are rarely judgments based on design because most manufacturers understand safety issues.
One area that does pop up in design defects is when a product is used differently from what it was originally designed. If the manufacturer leans about the misuse of the product, then the manufacturer may be held liable for injuries due to the misuse of the product.
Manufacturing defects are simply a failure of quality control. Although in this day, you would think, manufacturing defects would be rare, they occur constantly. A manufacturing defect is usually the reason for a recall of a product.
The final defect, warning defects, are the easiest and toughest at the same time. Making sure the information on how to use a product and any warnings on how not to use the product are critical. At the same time, it is difficult for manufacture to envision how their product could be used and all the risks from those different uses.
As an example, when I’m design manuals and warnings, I want the product. After I have examined it thoroughly and tried every possible way to use it improperly, I ask someone who has no understanding of the product to use it. A sixteen-year-old kid can do amazing things that no one ever envisioned with some products.
Many times, a product liability lawsuit will include a negligence claim. Here the court compared the issues of proving a product negligence claim and a product liability claim.
Plaintiffs also bring a claim for negligence. To sustain this claim, plaintiffs must prove (1) the existence of a duty of care on the part of the defendant, (2) a breach of that duty of care, (3) a causal connection between the defendant’s breach of the duty of care and the plaintiff’s injury, and (4) actual loss or damage resulting from the injury. In Wisconsin, a manufacturer’s duty of care includes the duty to safely design the product so it is fit for its intended purpose, and the duty to conduct adequate inspections and tests to determine the extent of defects.
The bold issue is another point you rarely know about. Your duty to design is just step one. Step two is you must test your product to make sure that it meets the intended purpose and the limits of your design. You design a product to do something. Once manufactured you must test the product initially and sometimes ongoing to make sure it still does what you say it will within the parameters you say it will operate.
This duty to test is increased if the duty arises from labeling or marketing. If you say the product contains X ounces of Sample or only breaks under loads greater than XX pounds you have to make sure each of your products meets that test.
The issue in ski helmets is not what the manufacturer says it can or cannot do. The issue is what the consumer believes the product will do. The consumer/plaintiff believes the ski helmet is designed to protect against a concussion, where, in reality; the design is just to slightly minimize the injury potential.
In this case, the plaintiff was claiming the helmet was defective. The plaintiff had to prove:
…a product is defective in design if the “foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design by the manufacturer, and the omission of the alternative design renders the product not reasonably safe.”
The helmet manufacturer, K2 brought up the fact that the helmet met the ASTM standards for ski helmets. That standard required the helmet to “keep the user’s head from accelerating more than 300 g, meaning that the force of impact on the skull is equivalent to 300 times the force of gravity or less.” If you look at that standard, it is minimal.
However, the ASTM helmet is not a 100% defense to a claim. It only shifts the burden to the plaintiff to prove the helmet was defective, more so since all helmet standards are voluntary.
The ASTM standards may be relevant, but they are not dispositive. If the ASTM standards were adopted by federal or state law, then K2 would be entitled to a rebuttable presumption that the helmet was not defective. Wis. Stat. § 895.047(3)(c). But the ASTM standards are only voluntary. Compliance with voluntary standards at the time of manufacturing may be evidence that K2 behaved reasonably, in defense of plaintiffs’ negligence claim.
Voluntary standards, which most standards are identified as, are really only a sword and not a shield. If you don’t meet a standard, then it is proof you don’t care, and you had a cheap product. Failing to meet a standard is better in the plaintiff’s hands to proof you were bad, rather than in the defendant’s hands as a shield.
Under Wisconsin law, the court set forth the issues needed to prove a defect based on inadequate warnings on the product or provided to the consumer.
Under Wisconsin’s product liability statute, a product is defective because of inadequate instructions or warnings if “foreseeable risks of harm posed by the product could have been reduced or avoided by the provision of reasonable instructions or warnings by the manufacturer and the omission of the instructions or warnings renders the product not reasonably safe.” Wis. Stat. § 895.047(1)(a). Plaintiffs do not need to show that Scott actually read the instructions to prove causation. When a product is missing an adequate warning, the missing warning is a substantial factor in causing injury if a reasonable person would have heeded the warning and as a result avoided injury. There is a presumption that any missing instructions would have been read, and therefore a presumption of causation.
Here again, warnings are another weak shield for the defendant and a better sword for the plaintiff in litigation. Warnings show you tried to inform the consumer, or you told the consumer not to do something and they consumer did it anyway. The lack of a warning is a major sword to the plaintiff who can show the jury the lack of care and concern on the part of the manufacturer that should have and could have warned the consumer of the risk.
You can see the difference in the value of some arguments between the plaintiff and the defendant. If the defendant had the warning, it really does not matter except to hope you can argue it was written in a way that the consumer had to have seen it. If the manufacturer fails to have a warning, then the presumption is the consumer would have read the warning and not been hurt. But for the failure to have a warning, there would be no injury. If you are a manufacturer believing that since you have met the standards you are safe, you are soon to be renamed “Defendant.”
Even the voluntary part of the term “voluntary standard” can come back to haunt a manufacturer. If the manufacturer decides not to meet the standard, it is easy for the plaintiff’s attorney to argue the manufacturer did not meet the standard to save money, or because they did not care about their customers. Consequently, once a standard is created, voluntary or not, every manufacturer must meet the standard.
Worse, any standard then restricts research and development because of the fear of not meeting the standard and looking bad in court.
The motion did not look at the issues, we would like some clarification or the facts. What happened to cause the head injury that turned the plaintiff into a vegetable and more importantly, what did the plaintiff believe when they purchased the helmet.
So Now What?
The decision had a few interesting points. However, the greatest issue is the floodgates are now probably open for head injuries that occur to skiers and other recreationists while wearing a helmet. It will be interesting to see how this decision progresses through the courts and whether the issues of the amount of protections afforded versus the expectations of the consumer becomes an issue.
As the decision states. Ski helmets have limited ability to protect. The ASTM standard quoted in the decision requires the helmet to meet a simple test.
Under the ASTM standards, a helmet must keep the user’s head from accelerating more than 300 g, meaning that the force of impact on the skull is equivalent to 300 times the force of gravity or less.
Human-powered recreation helmets, ski, bike, rollerblading, scooters, etc., only protect against minor scalp injuries, nothing more. If the NFL cannot protect football players with helmets costing thousands of dollars why to you think the piece of plastic you paid $100 is going to protect you from a concussion.
More articles about helmets
A helmet manufacture understands the issues (Uvex, Mouthguards) http://rec-law.us/xpxX6n
A new idea that makes sense in helmets: the Bern Hard Hat http://rec-law.us/yPerOd
Are we using safety as an excuse not to spend time with people? Is here, “wear your helmet” taking the place of let me show you how to ride a bike? http://rec-law.us/1fqwlpV
Do you really want to sell helmets this way? Does this article promote the industry? http://rec-law.us/NfoMTs
Does being safe make us stupid? Studies say yes. http://rec-law.us/Ao5BBD
Great article on why helmet laws are stupid http://rec-law.us/zeOaNH
Great editorial questioning why we need laws to “protect” us from ourselves. http://rec-law.us/Ayswbo
Helmets do not increase risk of a neck injury when skiing http://rec-law.us/wPOUiM
Helmets: why cycling, skiing, skateboarding helmets don’t work http://rec-law.us/RVsgkV
Law requires helmets, injuries down fatalities up? http://rec-law.us/YwLcea
Mixed emotions, but a lot of I told you so. http://rec-law.us/ysnWY2
More information over the debate about ski helmets: Ski Helmets ineffective crashes were the wear is going faster than 12 miles per hour http://rec-law.us/z4CLkE
The helmet issue is so contentious people will say the stupidest things http://rec-law.us/zhare9
What do you think? Leave a comment.
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helmet, summary judgment, testing, injuries, plaintiffs’, ASTM, instructions, contends, expert testimony, warning, ski, drop, product liability, move to strike, design defect, manufacturing, time of an accident, measured, opined, centimeters, parties, loss of consortium, admissibility, inadmissible, speculation, simulation, chinstrap, requires, warranty, exposed
Rogers v. K2 Sports, LLC, 2018 U.S. Dist. LEXIS 217233
Posted: February 5, 2019 Filed under: Legal Case, Skiing / Snow Boarding, Wisconsin | Tags: admissibility, ASTM, centimeters, Chinstrap, contends, design defect, drop, expert testimony, exposed, helmet, inadmissible, injuries, instructions, loss of consortium, Manufacturing, measured, move to strike, opined, parties, plaintiffs', Product liability, requires, simulation, Ski, speculation, Summary judgment, testing, time of an accident, Warning, warranty 1 Comment Rogers v. K2 Sports, LLC, 2018 U.S. Dist. LEXIS 217233
United States District Court for the Western District of Wisconsin
December 28, 2018, Decided; December 28, 2018, Filed
17-CV-534-JDP
2018 U.S. Dist. LEIS 217233 *
STEVEN SCOTT ROGERS, by his guardian, Tracy Rogers, TRACY ROGERS, SAMBA HEALTH BENEFIT PLAN, BLUE CROSS BLUE SHIELD OF WISONSIN, and STATE OF WISCONSIN DEPARTMENT OF HEALTH SERVICES, Plaintiffs, v. K2 SPORTS, LLC, LEXINGTON INSURANCE COMPANY, and AIG EUROPE LIMITED, Defendants.
helmet, summary judgment, testing, injuries, plaintiffs’, ASTM, instructions, contends, expert testimony, warning, ski, drop, product liability, move to strike, design defect, manufacturing, time of an accident, measured, opined, centimeters, parties, loss of consortium, admissibility, inadmissible, speculation, simulation, chinstrap, requires, warranty, exposed
Counsel: [*1] For Steven Scott Rogers, By his Guardian Tracy Rogers, Tracy Rogers, Blue Cross Blue Shield of Wisconsin, doing business as Athem Blue Cross and Blue Shield, Lexington Insurance Company, Plaintiffs, Counter Claimant, Counter Defendants: Charles M. Bye, Robert A. Parsons, LEAD ATTORNEY, Brian F. Laule, Bye, Goff, & Rohde, Ltd, River Falls, WI.
For Samba Health Benefit Plan, Plaintiff, Cross Claimant: Matthew Robert Falk, LEAD ATTORNEY, Falk Legal Group, Milwaukee, WI.
For State of Wisconsin – Department of Health Services, Involuntary Plaintiff, Plaintiff: Jesus Gabriel Garza, State of Wisconsin Department of Health Services, Madison, WI.
For K2 Sports, LLC, f/k/a K-2 Corporation, Defendant, Cross Defendant: Anne Marie Ellis, Gary A Wolensky, Michael Preciado, LEAD ATTORNEYS, Buchalter Nemer, Irvine, CA; Eric J. Meier, LEAD ATTORNEY, Husch Blackwell, LLP, Milwaukee, WI; Leslie Gutierrez, LEAD ATTORNEY, Milwaukee, WI; Christopher Hossellman, Buchalter, APC, Irvine, CA.
For AIG Europe Limited, Defendant, Cross Defendant: Charles W. Browning, Sara D. Corbello, LEAD ATTORNEYS, Plunkett Cooney, Bloomfield Hills, MI; Eric J. Meier, LEAD ATTORNEY, Husch Blackwell, LLP, Milwaukee, WI.
Judges: JAMES D. PETERSON, [*2] District Judge.
OPINION & ORDER
Plaintiff Steven Scott Rogers fell while skiing and suffered a serious brain injury. Scott and his wife, plaintiff Tracy Rogers, contend that Scott’s helmet, made by defendant K2 Sports, was defectively designed and that the defect was a cause of his injury. They have sued K2 for negligence, strict product liability, and breach of warranty. Dkt. 32. Tracy also claims loss of consortium as a result of her husband’s injuries.1 K2 denies that the helmet was defective, contending instead that the helmet was the wrong size and that Scott had not properly fastened it, and that he was injured by direct contact with the ground.
K2 moves for summary judgment on all of plaintiffs’ claims. Dkt. 102. Plaintiffs oppose, and they move to strike defendant’s experts’ opinions that the helmet moved out of position when Scott fell. Dkt. 139.
At the heart of this case is a straightforward dispute about the role of the helmet in Scott’s injury. The court will limit the testimony of K2’s experts about how the injury occurred because some of those opinions are too speculative. But that still leaves genuine disputes about the fit of the helmet and whether it was [*3] properly designed, so K2’s motion for summary judgment will be denied.
UNDISPUTED FACTS
The following facts are undisputed except where noted.
Scott wore a K2 Phase 08 helmet while skiing with his stepson Coby at the Afton Alps Ski Area in Washington County, Minnesota, on New Year’s Eve 2015. Around 8:40 p.m., Scott and Coby skied down a beginner’s run called Nancy’s Nursery. Scott fell about halfway down the hill near some small mounds called “rollers.” Coby was in front of Scott and did not witness the fall. Another skier did witness the fall, but he was not able to recall any details about it, except that the fall did not seem unusual.
The fall left Scott unconscious and bleeding from his left ear. Scott was taken by ambulance to a hospital, where doctors conducted tests including a CT scan of Scott’s head. The accident caused brain hemorrhages and fractured Scott’s skull, left clavicle, and numerous ribs along Scott’s left side. As a result of permanent brain damage caused by the accident, Scott now lives at a VA hospital where he receives round-the-clock care.
The K2 helmet was certified as compliant with the standards of ASTM International, which is an organization that develops and [*4] publishes technical standards for a wide range of products.2 Compliance with ASTM standards is voluntary. The K2 helmet has three layers. The exterior layer is a hard-plastic shell. The shell is lined with an Expanded Polystyrene (EPS) energy-attenuating layer, which is supposed to absorb and dissipate shock from a blow to the head. The third layer is a comfort liner that can be adjusted to fit on the user’s head. After Scott’s accident, the lower left rear of the exterior shell was cracked. And, in the same area, the shock-absorbing EPS layer was flattened, and chunks of the EPS were missing.
The parties sharply dispute what happened to the helmet when Scott fell. K2 contends that the helmet was improperly fit and not properly fastened. K2’s theory is that as Scott fell, his helmet shifted out of place and the left posterior region of his head was exposed and directly hit the ground. Dkt. 144, ¶ 38. K2 contends that the helmet only partially protected Scott’s head, and that the point of impact on the helmet was below the “test line,” which is the lower limit of the area that is supposed to be protected under ASTM standards. K2 also contends that pictures from the [*5] day of the accident show that Scott failed to tighten the helmet’s chinstrap. Id., ¶ 39.
Plaintiffs contend that the helmet did not actually meet ASTM standards. Plaintiffs’ theory is that the bottom rear of the helmet was excessively tapered at the test line. As a result of the tapering, the helmet did not afford sufficient protection against a blow such as the one Scott suffered. Plaintiffs also contend that the helmet was the right size for Scott.
ANALYSIS
K2 moves for summary judgment on the grounds that plaintiffs cannot prove that Scott’s K2 helmet was defective or that it caused Scott’s injuries. In connection with their opposition to K2’s motion, plaintiffs move to strike parts of K2’s expert evidence. The court begins with plaintiffs’ challenge to the expert evidence.
A. Plaintiffs’ motion to exclude expert evidence
Under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993), and Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147, 119 S. Ct. 1167, 143 L. Ed. 2d 238 (1999), the court must serve as a gatekeeper to ensure that proffered expert testimony meets the requirements of Federal Rule of Evidence 702. Essentially, the gatekeeping function consists of a three-part test: the court must ensure that the expert is qualified, that the expert’s opinions are based on reliable methods and reasoning, and that the expert’s opinions will assist the jury in [*6] deciding a relevant issue. Myers v. Ill. Cent. R. R. Co., 629 F.3d 639, 644 (7th Cir. 2010). The proponent of expert evidence bears the burden of establishing that the expert’s testimony is admissible. Lewis v. CITGO Petroleum Corp., 561 F.3d 698, 705 (7th Cir. 2009).
Plaintiffs move to strike aspects of the expert reports of P. David Halstead and Irving Scher. Although plaintiffs dispute Halstead’s qualifications, the main question is whether Halstead and Scher used reliable methodologies and reasoning. The admissibility inquiry undertaken by the court “must be ‘tied to the facts’ of a particular case.” Kumho, 526 U.S. at 150 (quoting Daubert, 509 U.S. at 591). The “critical inquiry” for admissibility is whether the opinion is rationally connected to the underlying data or “connected to the existing data ‘only by the ipse dixit of the expert.'” Gopalratnam v. Hewlett-Packard Co., 877 F.3d 771, 781, 732 Fed. Appx. 484 (7th Cir. 2017). Expert testimony that merely asserts a “bottom line” or provides testimony based on subjective belief or speculation is inadmissible. Metavante Corp. v. Emigrant Sav. Bank, 619 F.3d 748, 761 (7th Cir. 2010).
1. P. David Halstead
P. David Halstead is the Technical Director of Southern Impact Research Center. Halstead conducted a series of drop tests to try to replicate the damage on Scott’s helmet, and thereby to determine the amount of force that the helmet and Scott experienced at the time of Scott’s fall. Dkt. 110, at 6. Halstead offers two main opinions: (1) [*7] that the helmet was not defective, and (2) that the helmet was out of place at the time of the accident. Plaintiffs move to strike three aspects of Halstead’s report. Dkt. 137, at 6-7.
First, plaintiffs move to strike Halstead’s opinion that the helmet was out of position at the time of the accident. Halstead expresses that opinion in various forms:
• “It is my opinion that Mr. Rogers’ injuries were caused by complex fall kinematics that resulted while his helmet was out of position (rotated slightly to the left and possibly higher on the right) exposing his temporal bone in the area he sustained the mastoid fracture.” Dkt. 110, at 7.
• “Mr. Rogers sustained his injuries when his partially helmeted head, with the mastoid area of the temporal bone exposed, made contact with a somewhat compliant surface such as snow substantially similar to the snow measured at Afton Alps.” Id. at 9.
• “The skull fracture is a result of functionally direct contact with the impact surface to the mastoid area.” Id.
• “Given the test results had the helmet been in position the skull fracture almost certainly would not have occurred.” Id.
The court agrees with plaintiff that Halstead has not shown that this opinion is [*8] rationally connected to underlying data.
Halstead conducted a series of drop tests using K2 Phase 08 helmets, the same model as Scott’s helmet. Id. at 6. Under the ASTM standards, a helmet must keep the user’s head from accelerating more than 300 g, meaning that the force of impact on the skull is equivalent to 300 times the force of gravity or less. Dkt. 124-13, at 3. Although these drop tests were not testing for ASTM compliance, Halstead used 300 g as a threshold for the helmet’s effectiveness. Halstead conducted eleven tests by dropping helmets on to a modular elastomer programmer (MEP), a rubber pad that is somewhat harder than packed snow. Dkt. 110, at 6. None of the drops resulted in an acceleration of more than 181 g or damaged the helmet in a way that resembled the damage to Scott’s helmet. So Halstead conducted three more tests using a harder, steel anvil. Id. at 6. One of these drops did crack the helmet, but the damage was still not as severe as Scott’s helmet.
Halstead opined that because his tests could not replicate the damage to Scott’s helmet, Scott’s helmet must not have been in place on Scott’s head at the time of the accident. Id. at 8-9. Halstead did not conduct any follow-up testing; he [*9] did not, for example, try dropping the helmet while it was out of place on the headform or try dropping the helmet without using a full-sized headform. Instead, Halstead scanned both the accident helmet and the most severely damaged test helmet with a laser. Id. After eyeballing the results of the laser scan, Halstead again concluded that the damage did not match and that therefore the helmet was not in place at the time of the accident. He opined specifically that the helmet rotated to the left, exposing the area where Scott’s skull was fractured.
Two factors that a court may consider regarding the admissibility of expert testimony are whether the expert “unjustifiably extrapolated from an accepted premise to an unfounded conclusion” and whether “the expert has adequately accounted for obvious alternative explanations.” Gopalratnam, 877 F.3d at 788 (quoting Fuesting v. Zimmer, Inc., 421 F.3d 528, 534-35 (7th Cir. 2005)). Both factors support striking Halstead’s opinion here. When Halstead’s test results failed to re-create the damage to Scott’s helmet, Halstead had a basis for concluding that Scott’s fall was in some way atypical. But he had no foundation to then extrapolate from these results that the helmet was therefore out of position. And he was even less justified [*10] in hypothesizing on the helmet’s exact orientation during the accident. Halstead did not confirm his hypothesis through additional testing, nor did he address alternative explanations for the damage to Scott’s helmet, such as the existence of a manufacturing defect or a weakening of the helmet through multiple impacts. And his use of laser scanning provided no additional details to support his hypothesis. Halstead simply picked one possible explanation for the test results and then assumed it was true. Halstead concedes that he is not an expert in the “full body kinematics” that are critical to understanding how Scott was injured. Dkt. 110, at 7.
Second, plaintiffs move to strike Halstead’s opinion regarding the speed and force of impact on Scott’s head at the time of the accident:
Based on biomechanical testing the likely impact speed of his head to the surface was 13-14 mph or higher, head accelerations were in the range of 170 g — 220 g with angular acceleration between 7000-8000 rad/sec2.
Dkt. 110, at 7. The court will strike this opinion. Rule 702 places the responsibility on the expert to explain how his methodologies support his opinions. Metavante, 619 F.3d at 761. Although not explicitly stated, Halstead appears [*11] to have adopted these numbers from the results of his tests on the MEP pad. Dkt. 110, at 6. But as Halstead emphasized in his report, the tests on the MEP pad were unable to replicate Scott’s accident. It is not clear why the speeds and forces of impact must nonetheless be correct, and Halstead does not provide an explanation.
Third, plaintiffs move to strike Halstead’s opinion regarding the helmet’s ability to protect against high-speed impact:
“As the biomechanical testing shows the helmet, at its thinnest, well below the test line is able to take an impact at nearly 14 miles per hour with a hemi anvil and still remain under 300g.”
Id. at 7. The court will not strike this opinion, which is based on the test results. Plaintiffs suggest that Halstead is not qualified to provide “biomechanical engineering opinions,” but in their reply brief, plaintiffs concede that Halstead is an experienced technician who is qualified to conduct the type of drop testing he performed. Dkt. 151, at 2.
The bottom line is that the court will consider Halstead’s drop testing analysis, but it will not consider his testimony that the helmet was out of place at the time of the accident.
2. Irving Scher, Ph.D., P.E
Irving [*12] Scher is a biomechanical engineer at Guidance Engineering and Applied Research. Scher’s report includes two separate sets of conclusions that are relevant to summary judgment. First, Scher used computer models to determine the fit and looseness of the helmet that Scott wore. Second, Scher conducted a biomechanical engineering analysis to determine the “kinematics” of the accident—the movement of Scott’s body and ski equipment according to the laws of physics. Plaintiffs move to strike both sets of conclusions. Dkt. 137, at 7-8.
a. Helmet fit
Scher opines that the helmet was poorly fit and that it was loose enough to move out of place:
• “Mr. Roger’s head circumference at the hat line is approximately 57 centimeters. Because the head size recommended for the subject helmet ranges from 59 to 62, Mr. Rogers’ head was at or below the lower end of the subject helmet’s size.” Dkt. 107, ¶¶ 10-12.
• “At the level of the helmet brim there was at least 2 to 4 centimeters of free space between Mr. Rogers’ head and the helmet in the anterior-posterior direction, and the helmet had space to rotate 20 degrees clockwise and counter-clockwise.” Id. ¶ 13.
• “The subject helmet was not snugly fitted to Mr. [*13] Rogers’ head.” Id. ¶ 14.
These opinions are rationally connected to the reasonably reliable data that Scher considered; the court will not strike them.
Scher created a 3D computer model of Scott’s head from the CT scans on the night of Scott’s accident. Dkt. 112, at 15. Using this model, Scher calculated circumference of Scott’s head as 57 centimeters. Because the helmet that Scott purchased was recommended for head circumferences of 59 to 62 centimeters, Scher opined that Scott’s helmet was one size too large. Scher scanned an exemplar K2 helmet of the same size as Scott’s helmet. Within his computer modeling software, Scher placed the 3D model of the helmet on the 3D model of Scott’s head. Scher determined that there was at least 2.25 centimeters of free space between Scott’s head and the interior of the helmet, and that with this extra space the helmet could freely rotate 20 degrees clockwise and counterclockwise. Finally, Scher viewed photographs of Scott on the day of the accident and determined that Scott’s chin strap was “loose.” Id. at 16. Scher’s analysis of the helmet’s fit led Scher to conclude that it was possible for the helmet to move out of position and expose a portion of the [*14] posterior region of Scott’s head.
Plaintiffs contend that Scher’s analysis is unreliable because Scott’s head actually has a circumference of 60 centimeters, not 57 centimeters. Plaintiffs’ measurement comes from Tracy’s declaration that she measured Scott’s head with a tape measure. Dkt. 123, ¶¶ 7-8.3 Neither party adduces evidence showing that the other party’s measurement is manifestly incorrect, so the size of Scott’s head is a matter of genuine dispute.4 Such a dispute does not render Scher’s opinion inadmissible.
b. Kinematics analysis
Scher also offered opinions about how Scott fell and how he was injured, which Scher refers to as a “kinematics” analysis. He expresses those opinions as follows:
• “Mr. Rogers likely caught his ski edge, fell forward and leftward while rotating clockwise and continuing downhill, and contacted the left, posterior region of his helmeted head on his acromioclavicular joint and proximal humerus, a very rigid area of hard-packed snow, or both.” Dkt. 112, at 36.
• “Because the helmet was not snug on Mr. Rogers’s head and he did not adjust appropriately the chin strap, the subject helmet was able to (and did) move out of position during Mr. Rogers’s fall [*15] and subsequent head impact.” Id.
• “No snowsport helmet would be able to prevent the injuries sustained by Mr. Rogers in the subject accident.” Id.
• “The subject helmet rotated axially counterclockwise and rightwards on Mr. Rogers’ head during his fall such that his helmet was out of place and exposed a portion of the left posterior region of his head just prior to impact.” Dkt. 107, ¶ 9.
• “Mr. Rogers failed to properly tighten the subject helmet’s chin strap, which allowed the subject helmet to move out of position as he fell.” Id. ¶ 15.
• “Immediately before Mr. Rogers’ head contacted the ground, the subject helmet moved out of position, causing the point of impact to be below the helmet’s test line.” Id. ¶ 18.
• “In my professional opinion, any snow sport helmet with a similar fit and loose chin strap on Mr. Rogers’ head would have similarly moved relative to his head in the subject fall.” Id. ¶ 20.
The court will not consider these opinions because they are too speculative: there is simply not enough information about how Scott fell to support this analysis.
Based on the assumption that “catching an edge” is a common occurrence among skiers, and the location and severity of Scott’s [*16] injuries, Scher created a computer simulation using the computer program MADYMO. Scher ran several simulations in MADYMO, using different estimates for Scott’s speed and the conditions on the ski slope. Id. at 29. He tweaked the variables in the simulation until he was able to create a simulation that could result in injuries similar to Scott’s injuries. Then based on that simulation, he opined on Scott’s body movements as he fell, and the forces that Scott experienced when he hit the ground. Scher opines both that Scott’s helmet hit the ground below the test line, and that Scott hit the ground with such force that no helmet could have prevented Scott’s injuries.
Scher’s simulation, and the opinions based on it, are inadmissible because they are based on guesswork rather than the facts of Scott’s accident. An expert must show that he has sufficient data to use the methodology employed. See Gopalratnam, 877 F.3d at 781 (Rule 702 requires the underlying data to be both qualitatively and quantitatively sufficient to conduct the analysis). Opinions that are based on speculation are inadmissible. Metavante, 619 F.3d at 761. Here, there was no witness who could describe the moments leading up to the fall, no measurement or even estimate of Scott’s speed at the [*17] time of the fall, and no reliable evidence of Scott’s skiing abilities or style. The court will exclude the opinions expressed on pages 21 through 31 of Scher’s report. Dkt. 112.
Scher is free to testify that the helmet was loose and that it might have moved out of position. And he can testify that based on Halstead’s testing, and based on the literature regarding head injuries and ski accidents, it seems unlikely that a typical fall could have caused the injuries that occurred. But Scher cannot speculate that the helmet actually moved or opine on the exact location of the helmet at the time of impact.
B. K2’s motion for summary judgment
Plaintiffs bring claims under theories of strict product liability, negligence, breach of warranty, and loss of consortium. K2 moves for summary judgment on all of plaintiffs’ claims. The court will grant summary judgment on only the breach of warranty claims, which plaintiffs waive. Genuine disputes of material fact preclude summary judgment on the other claims.
1. Summary judgment standard
Summary judgment is appropriate only if there is no genuine dispute as to any material fact. Fed. R. Civ. P. 56(a). In ruling on a motion for summary judgment, the court views all facts [*18] and draws all inferences in the light most favorable to the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). Summary judgment will not be granted unless “the record taken as a whole could not lead a rational trier of fact to find for the non-moving party.” Sarver v. Experian Info. Sols., 390 F.3d 969, 970 (7th Cir. 2004) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986)).
2. Strict Product liability claim
Wisconsin product liability law is codified under Wisconsin Statute § 895.047.5 A product liability claim has five elements: (1) the product was defective; (2) the defect rendered the product unreasonably dangerous; (3) the defect existed when the product left the control of the manufacturer; (4) the product reached the consumer without substantial change; and (5) the defect caused the claimant’s damages. Wis. Stat. § 895.047(1). K2 contends that they are entitled to summary judgment because plaintiffs cannot show that the helmet had a defect that rendered it unreasonably dangerous and because plaintiffs cannot show that the alleged defect caused Scott’s injuries.
There are three different categories of defects under the statute: design defects, manufacturing defects, and warning defects. Plaintiffs concede that they do not have evidence of a manufacturing defect, but they bring alternative claims for defective design if the helmet was in place during the accident and [*19] defective warning if the helmet fell out of place before the impact. Under the first theory, plaintiffs must show that the helmet had a design defect that caused Scott’s injuries to be worse than they would have been without the defect. Under the second theory, plaintiffs must show that the helmet’s instructions did not warn users to tighten the chinstrap. K2 seeks summary judgment as to both theories.
a. Defective design
Defendants contend that plaintiffs cannot adduce evidence of a design defect and that, even if a defect exists, plaintiffs cannot show that it caused Scott’s injuries. The court will address each element in turn.
i. Unreasonably dangerous defect
Summary judgment is inappropriate when resolution of a claim requires the court to choose between opposing expert testimony. See Wipf v. Kowalski, 519 F.3d 380, 385 (7th Cir. 2008) (explaining that “in a case of dueling experts . . . it is left to the trier of fact . . . to decide how to weigh the competing expert testimony”). That is the case here. Both parties hired experts to test K2 helmets according to ASTM standards, but the experts disagree on the testing procedures and achieved different results.6
Under Wisconsin’s product liability statute, a product is defective in design [*20] if the “foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design by the manufacturer and the omission of the alternative design renders the product not reasonably safe.” Wis. Stat. § 895.047(1)(a).
K2 contends that plaintiffs have not shown any evidence of a design defect. But plaintiffs’ expert, Mariusz Ziejewski, provides evidence sufficient to support a reasonable jury verdict that a foreseeable risk of harm could have been reduced by the adoption of a reasonable alternative design. Ziejewski’s report states that due to tapering at the edge, the K2 helmet does not provide the protection required by ASTM standards when struck in the lower back. Dkt. 116; Dkt. 124-7. Ziejewski further states that other helmets without this tapering do provide the protection required by ASTM. This makes the K2 helmet more dangerous than helmets from K2’s competitors.
K2 argues that Ziejewski’s report is insufficient to establish a design defect because the report does not specifically opine that the design of the K2 helmet rendered it “not reasonably safe” or “unreasonably dangerous.” Dkt. 103, at 12. But an expert does not need to parrot the exact language [*21] used in the statute. See In re Zimmer NexGen Knee Implant Prods. Liab. Litig., 218 F. Supp. 3d 700, 725 (N.D. Ill. 2016), aff’d sub nom. In re Zimmer, NexGen Knee Implant Prods. Liab. Litig., 884 F.3d 746 (7th Cir. 2018) (“Plaintiffs are not required to put forth an expert to say the magic words . . . But Plaintiffs must provide sufficient evidence to allow a jury to reach that conclusion without resorting to speculation”) (applying Wisconsin law). A jury could use the evidence in the report to find that the increased danger posed by the K2 helmet’s tapering is unreasonable.
K2 also contends that to establish a design defect, plaintiffs must show that the K2 helmet failed the ASTM standards that were in effect at the time of manufacturing. K2 argues that Ziejewski instead tested the K2 helmet according to current ASTM testing procedures. Ziejewski concedes that he used the updated procedures, but he argues that it is more accurate than the old testing standard. Dkt. 124, ¶¶ 22-23. Plaintiffs need to show only that a reasonable alternative design would have eliminated the risk of harm. Ziejewski tested multiple helmets using the same test methods and concluded the K2 helmet failed where alternative designs did not.
The ASTM standards may be relevant, but they are not dispositive. If the ASTM standards were adopted by federal or state law, then K2 would be entitled [*22] to a rebuttable presumption that the helmet was not defective. Wis. Stat. § 895.047(3)(c). But the ASTM standards are only voluntary. Compliance with voluntary standards at the time of manufacturing may be evidence that K2 behaved reasonably, in defense of plaintiffs’ negligence claim. See Michaels v. Mr. Heater, Inc., 411 F. Supp. 2d 992, 997 (W.D. Wis. 2006) (citing Getty Petroleum Marketing, Inc. v. Capital Terminal Co., 391 F.3d 312, 326 (1st Cir. 2004)). So, at trial, K2 can raise this defense in response to plaintiffs’ negligence claim. But it is only a piece of evidence that the jury may weigh when deciding whether defendants met their duty to exercise reasonable care. Id.
ii. Causation
K2 also contends that it is entitled to summary judgment because the helmet was out of place at the time of impact, so plaintiffs cannot show that any alleged defect caused Scott’s injuries. The location of the helmet at the time of the accident is sharply and genuinely disputed, so that theory provides no basis for granting summary judgment to K2.
Nevertheless, K2 contends that even if the helmet was in place, it is still entitled to summary judgment because no helmet could have prevented Scott’s injury because preexisting injuries made him particularly vulnerable. This theory provides no basis for granting summary judgment to K2 either.
K2 adduces some evidence that Scott had suffered [*23] previous head injuries. Dkt. 144, ¶¶ 45-50. But K2 has scant evidence that the prior injuries were serious ones. More important, K2 does not adduce any evidence to support the outlandish statement in its brief that “no helmet would have been able to prevent the injuries he sustained on December 31, 2015.” Dkt. 103, at 10. K2’s own proposed findings of fact undermine this idea:
Had Mr. Rogers not been wearing a helmet, his brain injury would have been at least as severe if not more severe than it was on December 331, 2015, leaving him with worse permanent residuals or traumatic brain injury, or could have even adversely impacted his survival.
Dkt. 144, ¶ 51. K2 also says that plaintiffs’ expert Ziejewski “concedes that an alternative design would not have prevented Mr. Rogers from suffering a traumatic brain injury or a subdural hematoma in the subject incident.” Dkt. 103, at 11 (citing Dkt. 144, ¶ 28). As plaintiffs point out, K2 has grossly misstated the substance of Ziejewski’s deposition testimony in this proposed fact. Ziejewski testified that a properly designed helmet would have prevented a subdural hematoma, a level 4 injury. Ziejewski acknowledged that even with a properly designed [*24] helmet, “mild traumatic brain injury” was still a possible or likely outcome. Dkt. 122, at 28:21-29:25.
b. Defective Instructions
Plaintiffs’ alternative theory is that if the helmet slipped out of place before impact, it slipped because of defective instructions. Under Wisconsin’s product liability statute, a product is defective because of inadequate instructions or warnings if “foreseeable risks of harm posed by the product could have been reduced or avoided by the provision of reasonable instructions or warnings by the manufacturer and the omission of the instructions or warnings renders the product not reasonably safe.” Wis. Stat. § 895.047(1)(a). Plaintiffs do not need to show that Scott actually read the instructions to prove causation. When a product is missing an adequate warning, the missing warning is a substantial factor in causing injury if a reasonable person would have heeded the warning and as a result avoided injury. Michaels, 411 F. Supp. 2d at 1006 (citing Tanner v. Shoupe, 228 Wis. 2d 357, 596 N.W.2d 805, 817-18 (Ct. App. 1999)). There is a presumption that any missing instructions would have been read, and therefore a presumption of causation. Id.
Throughout its briefing, K2 contends that the looseness of Scott’s chinstrap was a factor that caused the helmet to slip out of place. Plaintiffs contend [*25] that any mistake by Scott in tightening his chinstrap was caused by the fitting instructions included with the helmet. The helmet’s instructions state that the helmet should be snug and that after adjusting the straps and pads, “the skin on your forehead should move with the helmet.” Dkt. 145, ¶ 10. The instructions do not include specific directions on the tightness of the chinstrap. A reasonable jury could find that this instruction does not warn consumers that they need to tighten the chinstrap in addition to adjusting the pads and comfort liner.
K2 contends that plaintiffs are required to adduce expert testimony regarding the effectiveness of product warnings. Dkt. 103, at 15. But K2 cites no case in which expert testimony was required to show that a warning was defective. Under Wisconsin law, expert testimony is required only if the court finds that “the underlying issue is not within the realm of the ordinary experience of mankind.” State v. Kandutsch, 2011 WI 78, ¶ 28, 336 Wis. 2d 478, 799 N.W.2d 865 (internal quotations omitted). And Wisconsin courts have declined to require expert testimony in cases involving much more complex issues than these fitting instructions. See Lindeman v. Mt. Olympus Enterprises, Inc., No. 14-cv-435, 2015 U.S. Dist. LEXIS 105756, 2015 WL 4772925, at *3 (W.D. Wis. Aug. 12, 2015) (collecting cases). [*26] Here, the instructions are written in plain language, and the act of reading and following instructions is well within the ordinary experience of mankind.
The court denies K2’s motion for summary judgment on the defective instructions claim.
3. Negligence claim
Plaintiffs also bring a claim for negligence. To sustain this claim, plaintiffs must prove (1) the existence of a duty of care on the part of the defendant, (2) a breach of that duty of care, (3) a causal connection between the defendant’s breach of the duty of care and the plaintiff’s injury, and (4) actual loss or damage resulting from the injury. Smaxwell v. Bayard, 2004 WI 101, ¶ 32, 274 Wis. 2d 278, 682 N.W.2d 923. In Wisconsin, a manufacturer’s duty of care includes the duty to safely design the product so it is fit for its intended purpose, and the duty to conduct adequate inspections and tests to determine the extent of defects. Wis. Civil Jury Instructions § 3200(2).
K2 contends that plaintiffs have not adduced evidence of “specific acts of negligence.” Dkt. 103, at 17. But plaintiffs can rely on the same evidence used to establish their product liability claims. Although negligence and product liability are alternative theories of liability, there is significant overlap between the two. See Krien v. Harsco Corp., 745 F.3d 313, 317 (7th Cir. 2014) (“[A] [*27] claim of strict products liability is much like a negligence claim because it requires proof either that the product was unreasonably dangerous or, what amounts to the same thing, that it was defective”). Plaintiffs’ expert testimony from Ziejewski is sufficient to create a material dispute regarding whether K2 breached its duty to design a product that was safe for skiers.
4. Breach of warranty claim
K2 moves for summary judgment on plaintiffs’ claims for breach of warranty on two grounds. Dkt. 103, at 17-18. First, K2 contends that under Austin v. Ford Motor Co., claims for breach of warranty cannot be brought when the plaintiff has a tort claim. See 86 Wis.2d 628, 273 N.W.2d 233, 240 (1979) (“[I]t is inappropriate to bring an action for breach of warranty where a tort remedy is sought”). Second, K2 contends that there is no privity of contract between plaintiffs and K2. See St. Paul Mercury Ins. Co. v. Viking Corp., 539 F.3d 623, 626 (7th Cir. 2008) (Wisconsin law requires privity of contract between parties before liability can be founded on breach of express or implied warranty).
Plaintiffs have not substantively responded to either of these arguments. Dkt. 137, at 52-53. Failure to respond to an argument can result in waiver or forfeit of a claim. Nichols v. Nat’l Union Fire Ins. Co. of Pittsburgh, PA, 509 F. Supp. 2d 752, 760 (W.D. Wis. 2007) (collecting cases). Because plaintiffs did not [*28] respond to K2’s arguments regarding privity or the ability to bring warranty claims in a tort case, the court will grant summary judgment for K2 on plaintiffs’ claims for breach of warranty.
5. Loss of consortium claim
K2 moves for summary judgment on Tracy’s loss of consortium claim because it is derivative of Scott’s injuries. Because the court denies summary judgment on Scott’s product liability and negligence claims, it will also deny summary judgment on Tracy’s claim for loss of consortium.
K2 also moves to dismiss Tracy’s claim on the ground that plaintiffs have not properly pleaded loss of consortium in their amended complaint. Plaintiffs’ amended complaint does not include “loss of consortium” as an independent cause of action, but it does include allegations that “Plaintiff Tracy Rogers . . . has been deprived of the services, society, companionship and consortium of Scott Rogers as a proximate result of his enhanced injuries.” Dkt. 32, ¶ 23. K2 contends that this is insufficient under the plausible pleading standard of Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009).
Plaintiffs’ allegations are sufficient to state a claim. Even post-Iqbal, Federal Rule of Civil Procedure 8 requires only “adequate notice of the scope of, and basis for” the asserted claims. [*29] Avila v. CitiMortgage, Inc., 801 F.3d 777, 783 (7th Cir. 2015) (citing Vincent v. City Colleges of Chi., 485 F.3d 919, 923 (7th Cir.2007)). Here, K2 had adequate notice that Tracy was seeking relief for loss of consortium as a result of the enhanced injuries caused by the K2 helmet.
C. Additional motions and requests for relief
As a final matter, plaintiffs ask the court to deny certain requests by K2 that plaintiffs contend were improperly included in K2’s summary judgment reply. Dkt. 149. Some of the “motions” to which plaintiffs refer are objections to allegedly inadmissible evidence—objections that K2 is allowed to raise during summary judgment. For example, K2 objects that the declarations from Tracy and Ziejewski, first produced with plaintiffs’ summary judgment opposition, are untimely expert testimony. Dkt. 143, at 3-10. There is nothing improper about K2 making these objections in its summary judgment reply. (The court has overruled the objection to Tracy’s declaration, and it has not considered the Ziejewski declaration. Whether the Ziejewski evidence will be allowed at trial will be addressed later at the final pretrial conference.)
But K2 requests two additional forms of relief in its reply brief. First, K2 contends that plaintiffs should be sanctioned for spoliation because Tracy adjusted the helmet’s [*30] comfort liner and therefore altered it from its condition at the time of the accident. Dkt. 143, at 7-8 fn. 7. Second, K2 contends that plaintiffs did not disclose the existence of Scott’s ski goggles and must be ordered to turn them over. Id. at 8.
A party may not raise new issues in a reply brief. See Casna v. City of Loves Park, 574 F.3d 420, 427 (7th Cir. 2009). In any event, both of K2’s requests for additional relief are undeveloped. The spoliation arguments are relegated to a footnote. And both requests misconstrue the history of this case. K2’s own experts previously removed the helmet’s comfort lining at issue. Dkt. 112, at 10-11. And K2 was already aware of Scott’s goggles, Dkt. 130 (Tracy dep. 33:9-17), and Halstead included a pair of goggles as a factor in his testing. Dkt. 110, at 4. The court will deny K2’s requests for additional relief, thus granting plaintiffs’ request.
ORDER
1. Plaintiffs motion to exclude the opinion testimony of K2’s experts, Dkt. 139, is GRANTED in part and DENIED in part, as provided in this opinion.
2. Defendant K2’s motion for summary judgment, Dkt. 102, is DENIED for the most part. The motion is GRANTED only with respect to plaintiffs’ claims for breach of warranty.
3. Plaintiffs Scott Rogers and [*31] Tracy Rogers’ motion, Dkt. 149, for summary denial of K2’s motions is GRANTED in part. The court denies defendant K2’s motions to produce ski goggles and to sanction plaintiffs for spoliation.
4. Pursuant to the parties’ stipulation, Dkt. 250, all claims as to defendants Lexington Insurance Company and AIG Europe Limited are DISMISSED without prejudice.
Interesting decision only real defense was the Wyoming’s Recreation Safety Act, which provides little if any real defense.
Posted: January 22, 2019 Filed under: Assumption of the Risk, Paddlesports, Rivers and Waterways, Wyoming | Tags: #AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #BicyclingLaw, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #OutsideLawyer, #Rec-Law, #RecLaw, #RecLawBlog, #RecLawyer, #Recreation-Lawcom, #RecreationalLawyer, #RecreationLawBlog, #RecreationLawcom, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #SkiLaw, #SummerCamp, #Tourism, #YouthCamps, #ZipLineLawyer, Backpacking, Camps, channel, Choice of Law, Common Carrier, Federal Law, Float, floating, genuine, Guest, Hiking, horseback riding, Inherent Risk, Issue of Material Fact, jam, JimMoss, joint venture, Law, lodge, log, matter of law, Mountaineering, Negligence, OutdoorLaw, OutdoorRecreationLaw, OutsideLaw, preempt, provider, Punitive damages, Raft, Rafting, Rec-LawBlog, Recreation, Recreation-Law.com, recreational, recreational opportunity, RecreationLaw, River, Saddle, skiing, snowboarding, Sport, Summary judgment, tour operator, TravelLaw, trip Leave a commentDefendants are the company that booked the trip (Vail through Grand Teton Lodge Company) and the travel agent who booked the trip.
Rizas et. al. v. Vail Resorts, Inc.; et. al., 2009 U.S. Dist. LEXIS 139788
State: Wyoming
Plaintiff: Alexis R. Rizas, Individually and as the Personal Representative of the Wrongful Death Beneficiaries of John J. Rizas, deceased; John Friel, Individually and as the Personal Representative of the Wrongful Death Beneficiaries of Elizabeth A. Rizas, Deceased; Ronald J. Miciotto, as the Per-sonal Representative of the Wrongful Death Beneficiaries of Linda and Lewis Clark, Deceased; James Clark; Lawrence Wilson; and Joyce Wilson, Plaintiffs
Defendant: Vail Resorts, Inc.; Grand Teton Lodge Company; Tauck, Inc., a.k.a. Tauck World Discovery, Inc., a.k.a. Tauck Tours, Inc.
Plaintiff Claims: Negligence, Punitive damages
Defendant Defenses: Wyoming’s Recreation Safety Act
Holding: Mixed, mostly for the plaintiff
Year: 2009
Summary
Decision looks at the liability of the travel agency and the hotel that booked a rafting float trip where three people died. The only defenses of available were the Wyoming’s Recreation Safety Act which helped keep the lawsuit in Wyoming applying Wyoming law, but was ineffective in assisting in the defense of the lawsuit.
The rafting company is not part of this decision so probably the raft company settled with the defendants before the case was filed or this motion was heard.
Facts
Tauck is a corporation formed under the laws of New Jersey and primarily doing business in Connecticut. Stipulated Facts, Docket Entry 108. Tauck is in the business of selling tour packages to its clients, one of which in 2006 was a tour called the “Yellowstone & Grand Teton – North.” This tour began in Salt Lake City, Utah and ended in Rapid City, South Dakota. Id. The tour included a two-night stay at the Jackson Lake Lodge in the Grand Teton National Park, and the Lodge was operated by GTLC. GTLC is organized under the laws of Wyoming and operates within the Grand Teton National Park pursuant to a concessionaire agreement with the National Park Service. Among the services that GTLC offered its guests is a 10-mile float trip along the Snake River from Deadman’s Bar to the Moose Landing. Tauck’s 2006 promotional materials contains the following sentence: “Take a scenic ten-mile raft trip on the Snake River as it meanders through spectacular mountain scenery alive with wildlife, including moose, elk, deer, and many species of birds.”
On June 2, 2006, a tour group gathered at the Lodge at approximately 8:00 a.m. They traveled via several vans to the rafting launch site at Deadman’s Bar. The trip took approximately one hour. There the larger group was split into four smaller groups, one for each raft provided. Raft No. 1 was guided by Wayne Johnson, an employee of GTLC. The raft at issue, Raft No. 2, had 11 passengers: John Rizas, Elizabeth Rizas, Patricia Rizas, Linda Clark, James Clark, Lawrence “Bubba” Wilson, Joyce Wilson, Tom Rizas, Ruth Rizas, Jon Shaw, and Maria Urrutia. The raft guide was Daniel Hobbs, who was also a GTLC employee and had been for four years.
During the float trip, Raft No. 2 struck a log jam. The collision occurred in the Funnelcake channel, which was one of several braided channels of the river. The raft upended as a result and all passengers were thrown into the river. John Rizas, Elizabeth Rizas, and Linda Clark died as a result.
Analysis: making sense of the law based on these facts.
The first issue was a choice of laws (jurisdiction and venue) provision in the agreement with the travel agency Tauck, which stated venue was to be in Connecticut. The plaintiff was arguing that the case should be moved to Connecticut, which is odd, because the plaintiff’s filed the case to start in Wyoming. However, since they sued in Wyoming, the plaintiff is still arguing that Connecticut law should apply.
Tauck argued the choice of law provisions was for its benefit, and it had the right to waive that provision in the agreement. The court found that Tauck had the right to waive a provision in the agreement that was there for its benefit.
In Wyoming, a contract must be construed according to the law of the place where it was made. There is no evidence indicating where the contract at issue was formed, but that makes little difference because the law of waiver of contract provisions is widespread and well accepted. “A party to a contract may waive a provision of the contract that was included for his benefit.”
The court held that the provision was for Tauck’s benefit because the living plaintiffs were residents of Georgia and Louisiana.
The court also stated, even it had not found for Tauck on this issue this way; it would have still used Wyoming law because of Wyoming’s strong public policy of recreational immunity.
Even if Tauck had not waived its right to enforce the choice-of-law provision, this Court would not enforce this provision due to Wyoming’s strong public policy of recreational immunity. Plaintiffs seek application of Connecticut law largely to avoid the effects of. The Court will discuss the Act in detail below; it is sufficient here to note that the Act provides a near-total elimination liability of a recreation provider where a person is injured because of an “inherent risk” of a recreational activity. River floating is specifically named as a qualifying recreational activity. Consequently, Plaintiffs seek application of Connecticut law because Connecticut is not so protective of its recreational providers as Wyoming.
Choice of law provisions are usually upheld by the courts; however, there are ways to get around them as this court explained.
The tour members and Tauck agreed that Connecticut law would apply, and Connecticut has a significant connection to the contract because of Tauck’s operation there. Nevertheless, Wyoming’s interest in the resolution of this issue is significantly greater because important Wyoming policy concerns are involved in the question of whether a provider of recreation opportunities should be subject to liability for injury from inherent risks. Absent a Connecticut plaintiff, Connecticut has no interest in whether a Wyoming corporation is held liable. Indeed, Connecticut’s interest in this case, if any, is probably more closely aligned with Tauck, which operates in that state.
The Court’s analysis is further informed by the fact that that Wyoming’s public policy in this matter is a strong one. Initially, the Act was less protective of recreation service providers, defining an “inherent risk” as “any risk that is characteristic of or intrinsic to any sport or recreational opportunity and which cannot reasonably be eliminated, altered or controlled.” In 1996, the Wyoming Legislature eliminated the clause, “and which cannot reasonably be eliminated, altered or controlled.” Subsequent to the amendment, this Court recognized the extraordinary protection offered to recreation providers in Wyoming:
Given this extraordinary protection, this Court must conclude that the Wyoming Legislature views immunity for recreation providers to be an important state interest. Wyoming law should apply in this case.
The court then reviewed the Wyoming’s Recreation Safety Act. The plaintiff’s argued the Wyoming’s Recreation Safety Act did not apply for three reasons.
First, they contend that Connecticut law applies–an argument that the Court has already resolved in favor of Defendants.
Second, Plaintiffs argue that Tauck is not a “provider” as defined in the Act.
Third, they assert that federal law preempts the Act.
The court found the first argument was already resolved in its analysis of jurisdiction above.
The second argument was the Wyoming’s Recreation Safety Act did not apply to the defendant Tauck, because it was a travel agent in Connecticut and not a “provider” as defined under the act. The court found that Tauck was a provider under the act because as part of its package. Provider is defined as “[A]ny person or governmental entity which for profit or otherwise offers or conducts a sport or recreational opportunity.”
The final issue was the argument that the state law was pre-empted by federal law. The argument was based on the concessionaire agreement the defendant had with the NPS. Although the concession agreement with the NPS provided for visitor safety, there was nothing in the agreement showing intent to pre-empt the Wyoming’s Recreation Safety Act.
The court then looked to see if the Wyoming’s Recreation Safety Act provided a defense in this case. The court first defined Inherent Risk under Wyoming law.
‘Inherent risk’ with regard to any sport or recreational opportunity means those dangerous conditions which are characteristic of, intrinsic to, or an integral part of any sport or recreational opportunity.”
[As you can see, the definition of inherent risk is not a broad definition it narrowly defines the risks to those intrinsic or integral to the activity. That leaves out thousands of risks created by man such as steering the raft, water releases, choosing the run, etc. which are probably not protected by the act.]
Outside of the inherent risks, to thwart the act, the plaintiff only needs to argue the risk was not inherent and the case would proceed to trial because the Wyoming’s Recreation Safety Act does not provide a defense to any risk not inherent in the sport. Because the court could not determine what risks were inherent what were not, it held the Wyoming’s Recreation Safety Act did not apply in this case.
In any case, this Court is bound to apply Sapone. Plaintiffs have submitted evidence that tends to show that the river, on the day of the river float trip, was running higher and faster so as to result in an activity with some greater risk to the participants. In addition, Plaintiffs submitted evidence suggesting that this stretch of river was generally believed to be a dangerous one. Specifically, a National Park Service publication entitled “Floating the Snake River” states that the area from Deadman’s Bar to Moose Landing “is the most challenging stretch of river in the park, and most accidents occur here. The river drops more steeply, with faster water than in other sections south of Pacific Creek. Complex braiding obscures the main channel, and strong currents can sweep boaters into side channels blocked by logjams.” Id. This evidence is not uncontested, of course, but it is sufficient to preclude summary judgment on this issue. The Court finds that there is a genuine issue of material fact regarding whether colliding with the log jam was an inherent risk of the river float trip undertaken by the tour members on June 2, 2006.
The court moved on to Tauck’s motion for summary judgment because as a tour agency is was not liable for the negligent acts of third parties, it dealt with. The law supports that argument. “As a general rule, a tour operator is not liable for injuries caused by the negligence of third parties over which the tour operator did not exercise ownership or control.”
However, that general rules does not apply if a contract with the travel agency or marketing state the travel agency will undertake a duty. (Always remember Marketing makes Promises Risk Management has to Pay for.)
Here the court found the promotional materials were marketing and did not rise to the level to be promises to be kept.
The plaintiff also argued Tauck took on a greater duty to the guests when it undertook the duty to have the guests sign the defendant GTLC’s acknowledgment of risk forms. That duty included duty to inform the guests of the risk associated with river rafting. However, the court could find nothing in Tauck’s action indicating it was accepting a greater duty when it handed out the assumption of the risk forms.
The plaintiff’s created a fraud argument. Under Montana’s law:
To prove fraud, the plaintiff must show by clear and convincing evidence that (1) the defendant made a false representation intended to induce action by the plaintiff; (2) the plaintiff reasonably believed the representation to be true; and (3) the plaintiff suffered damages in relying upon the false representation
The plaintiff’s argued that the defendants made all sorts of statements and advertising that the float trip was a leisurely scenic trip. The channel the raft guide took was not leisurely but was a dangerous channel by some authorities. However, the issue was, did the defendants intentionally made the statements about the river to induce the plaintiffs to the trip.
The defendants wanted the plaintiff’s claim for punitive damages dismissed. In Wyoming, punitive damages appear to be a claim much like negligence. The punitive damages claim was based on the same allegations that the fraud claim was made, that the defendants misrepresented the nature of the float trip.
Punitive damages in Wyoming are:
We have approved punitive damages in circumstances involving outrageous conduct, such as intention-al torts, torts involving malice and torts involving willful and wanton misconduct.” Willful and wanton misconduct is the intentional doing, or failing to do, an act in reckless disregard of the consequences and under circumstances and conditions that a reasonable person would know that such conduct would, in a high degree of probability, result in harm to another. “The aggravating factor which distinguishes willful misconduct from ordinary negligence is the actor’s state of mind. In order to prove that an actor has engaged in willful misconduct, one must demonstrate that he acted with a state of mind that approaches intent to do harm.”
Failing to advise the plaintiffs that the river was running higher than normal because of the spring run off did not rise to a level to be reckless and willful misconduct. The one channel of several the one guide went down was a negligent decision, not a willful one.
So Now What?
Fairly simple, use a release. It would have stopped this lawsuit sooner. If the outfitter would have used a release, it could have protected the lodge and the travel agent. I’m sure the lodge is going to use one now, which will probably just muddy the water because of multiple releases and defendants.
There are very few statutes that provide any real protection in the outdoor recreation industry. Most, in fact, make it easier for the plaintiffs to win. The exception to the rule is a few of the Ski Area Safety Statutes.
Be prepared and do more than rely on a week statute.
What do you think? Leave a comment.
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By Recreation Law Rec-law@recreation-law.com James H. Moss
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A fly-fishing lawsuit, a first.
Posted: January 14, 2019 Filed under: Assumption of the Risk, Montana, Paddlesports, Whitewater Rafting | Tags: abnormally, amend, Assumption of risk, bridge, drowning, emotional distress, Fishing, Float Trip, Fly Fishing, genuine, Inherent Risks, Issue of Material Fact, James Yeager, Jim Yeager Outfitters, loss of consortium, matter of law, negligence claim, Personal Flotation Device, PFD, provider's, Raft, reasonable care, Recreation, recreational, recreational opportunity, recreationists, River, secondary, severe, Skier, skiing, Sport, Summary judgment, unconstitution-ally vague, Whitewater, Wyoming Act's 3 CommentsMontana Federal Court covers a lot of interesting legal issues for the OR industry in this decision. However, defendant is in a tough position because the statutes provide no help, he can’t use a release and probably like most fly-fishing guides; he believes he won’t be sued.
McJunkin v. James Yeager d/b/a Jim Yeager Outfitters, 2018 U.S. Dist. LEXIS 169321
State: Montana
Plaintiff: Charles P. McJunkin, deceased, by and through his executor and personal representative, Rhett McJunkin, and Rhett McJunkin, executor and personal representative, on behalf of the heirs of Charles P. McJunkin
Defendant: James Yeager d/b/a Jim Yeager Outfitters
Plaintiff Claims: negligence, negligent infliction of emotional distress, and loss of consortium
Defendant Defenses: Montana Recreation Responsibility Act
Holding: Split, mostly for the defendant
Year: 2018
Summary
At the end of a float fly fishing trip, the boat hit a rock throwing the deceased into the river. While attempting to get the deceased back in the boat the deceased partner fell in. The deceased yelled to grab her because she could not swim. The defendant grabbed the girlfriend and maneuvered the boat through rapids.
The deceased drowned, (supposedly). Neither were wearing PFDs.
Facts
Yeager is a professional fishing guide and outfitter. On July 17, 2014, Yeager took a paying client, Charles P. McJunkin on a guided fishing trip in a raft on the Stillwater River. As Yeager was guiding and operating the raft, McJunkin fell into the river and drowned. McJunkin was 81 years old at the time of his death.
McJunkin had gone on similar guided fishing trips with Yeager for approximately 20 years. In fact, in the week preceding the July 17, 2014 accident, McJunkin had floated and fished the Stillwater River three times with Yeager. On each occasion, Yeager put-in at the Johnson Bridge Fishing Access, and used the Swinging Bridge Fishing Access Site for a take-out at the end of the day. The Swinging Bridge take-out is approximately one-quarter mile above a set of rapids known as the Beartooth Drop. Yeager had never floated through the Beartooth Drop with McJunkin.
On the date of the accident, Yeager was guiding McJunkin and his partner, Julia Garner (“Garner”). The plan was to again float from Johnson Bridge to the Swinging Bridge take-out. The river conditions encountered by Yeager that day were characteristic of, and consistent with conditions he previously encountered on that stretch of the river. Yeager approached the Swinging Bridge take-out in the same manner as he had on the three earlier days of fishing. As he approached the take-out, the raft crossed an underwater shelf of rocks. When the rear of the raft passed the shelf, the boat rocked and McJunkin fell into the water. Although the raft was equipped with personal floatation devices (PFDs), McJunkin was not wearing one at the time.
McJunkin swam toward the raft, and Yeager attempted to position the raft so that McJunkin could grab ahold of the side. During this process, the party floated past the Swinging Bridge take-out. To complicate matters further, as Yeager attempted to pull McJunkin into the raft, Garner fell into the water. The parties dispute what caused Garner’s fall. Plaintiffs contend Yeager accidentally hit her with an oar. Yeager indicated he didn’t know what caused her to fall in, testifying “I don’t know if I hit a rock or a wave or whatever, Julie went in.” Garner yelled to Yeager that she could not swim. Yeager made the split-second decision to let go of McJunkin and attempt to save Garner, fearing she would drown otherwise. Yeager was able to pull her back into the raft as they entered the Beartooth Drop. Meanwhile, McJunkin lost contact with Yeager and the raft and floated through the rapid. He ultimately did not survive.
Analysis: making sense of the law based on these facts.
Only the legal issues affecting fly fishing or the outdoor industry will be reviewed. This decision is a result of both parties filing motions for summary judgment, so there is no chronological hierarchy of how the decision is written. Each motion is tackled by the judge in the order to make the following arguments more manageable.
A few things to remember. Montana does not allow an outfitter or guide to use a release. See Montana Statutes Prohibits Use of a Release.
Both parties filed motions concerning the Montana Recreation Responsibility Act (MRRA). The MRRA is similar to the Wyoming Recreational Safety Act, both of which are solely assumption of the risk statutes and weak overall. The plaintiff argued the MRRA was unconstitutional on several grounds, all of which were denied. The defendant argued the MRRA should bar the plaintiff’s claims which were also denied.
The first issue was inherent risks under the MRRA are not defined per activity or in general.
Under the plain language of the MRRA, a risk must satisfy two requirements to constitute an “inherent risk” and thus fall within the Act’s protection. There must be (1) a danger or condition that is characteristic of, or intrinsic to the activity, and (2) the danger or condition must be one that cannot be prevented by the use of reasonable care. Mont. Code Ann. § 27-1-752(2).
This leaves a monstrous gap in the protection it affords, in fact, does not afford outfitters and guides in Montana any real protection.
The court did not agree that the MRRA was broad enough to protect the defendant in this case.
Here, there are genuine issues of material fact regarding whether the risk encountered by McJunkin was an inherent risk to the sport of float fishing, or whether Yeager could have prevented the risk using reasonable care. Yeager’s expert opined that drowning is an inherent risk of floating in a raft on a river, and McJunkin’s death was a result of that inherent risk. But Plaintiffs’ expert states the risk of drowning can be prevented by the use of reasonable care. Plaintiffs’ expert also opined that Yeager increased the risks to McJunkin, and failed to adhere to industry standards by not taking basic safety precautions and not having a plan or equipment to retrieve McJunkin from the water.
Because there was a genuine issue of material fact (a mix of plausible opinions) the MRRA was not broad or strong enough to stop the plaintiff’s claims and the defendant’s motion failed.
The plaintiff argued the MRRA was void because it was vague, it did not define inherent risk.
The void-for-vagueness doctrine chiefly applies to criminal statutes, but can apply to civil laws as well. Civil statutes, however, generally receive less exacting vagueness scrutiny. The United States Supreme Court has held “[t]o find a civil statute void for vagueness, the statute must be so vague and indefinite as really to be no rule or standard at all.” The Montana Supreme Court has similarly declared that a statute is unconstitutionally vague on its face only if it is shown “that the statute is vague ‘in the sense that no standard of conduct is specified at all.'” “[P]erfect clarity and precise guidance are not required.” A statute is not vague “simply because it can be dissected or subject to different interpretations.”
The plaintiff also argued that because the MRRA did not define risk that it was void.
A person of common intelligence can understand the risks associated with river sports or activities. There is no indication McJunkin would not have been able to appreciate such risks, including the potential risk involved in floating and fishing. Indeed, in their depositions Plaintiffs were able to articulate risks associated with floating on a river, such as falling out of the boat and drowning.
The plaintiff argued they should be able to sue for negligent infliction of emotional distress (“NEID”).
To constitute ‘serious’ or ‘severe,’ the emotional distress must be ‘so severe no reasonable person could be expected to endure it.'” The question of whether the threshold level of emotional dis-tress can be found is for the Court to determine. (“It is for the court to determine whether on the evidence severe [serious] emotional distress can be found; it is for the jury to determine whether, on the evidence, it has in fact existed.”).
In Feller, the Montana Supreme Court considered several factors in determining whether there is sufficient evidence of severe emotional distress, including: (1) whether the plaintiff had any physical manifestations of grief; (2) whether counseling was sought or recommended; (3) whether the plaintiff took medication or the use of medication dramatically increased; (4) whether the plain-tiff had continuous nights of sleeplessness or days without appetite; (5) whether the plaintiff maintained close relationships with family members and friends; (6) the duration of the emotional dis-tress; and (7) the circumstances under which the infliction incurred, including whether the plaintiff witnessed the distressing event.
The plaintiff also argued they should be able to sue for loss of consortium.
Montana law recognizes loss of consortium claims by an adult child of an injured parent. In Stucky, the Montana Supreme Court held an adult child must meet the following two-part test to establish a claim for loss of parental consortium: “1) a third party tortuously caused the parent to suffer a serious, permanent and disabling mental or physical injury compensable under Montana law; and 2) the parent’s ultimate condition of mental or physical impairment was so overwhelming and severe that it has caused the parent-child relationship to be destroyed or nearly destroyed.”
In establishing a loss of parental consortium claim, the plaintiff may present evidence of the following factors, which the jury may consider in determining both whether the two-part test has been satisfied, and what damages are appropriate: “the severity of injury to the parent; the actual effect the parent’s injury has had on the relationship and is likely to have in the future; the child’s age; the nature of the child’s relationship with the parent; and the child’s emotional, physical and geographic characteristics.”
The court then looked at the issue of abnormally dangerous. A finding of that an activity is abnormally dangerous brings more damages and fewer requirements to prove part of the negligence of the defendant.
“Whether an activity is abnormally dangerous is a question of law.” No court has held float fly fishing is an abnormally dangerous activity, and this Court declines Plaintiffs’ invitation to be the first to do so.
So Now What?
A statute that protects defendants based on assumption of the risk does so because it identifies specific risk and broadens the definitions of what an inherent risk is. An example would be the Colorado Skier Safety Act. That act describes the inherent risk of skiing and then adds dozens of more risk, which are beyond the normal scope of inherent.
Both the MRRA and the Wyoming Recreational Safety Act statutorily defines the common law but does nothing to broaden or strengthen the common law. They could better be defined as politically pandering, an attempt by a politician to make constituents feel better by giving them something, which, in reality, has no value.
The fly-fishing outfitter was caught in Montana’s lack of available defenses, no statutory protection and no availability of a release. He might be able to strengthen his defenses by having his clients sign an Assumption of the Risk Document. He also might offer them PFDs.
Furthermore, remember in most whitewater or cold-water deaths drowning is not the cause of the death. Most people die of a heart attack. risk or Wikipedia: Cold Shock Response.
What do you think? Leave a comment.
Copyright 2018 Recreation Law (720) 334 8529
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Author: Outdoor Recreation Insurance, Risk Management and Law
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Email: Rec-law@recreation-law.com
By Recreation Law Rec-law@recreation-law.com James H. Moss
#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, #RecreationLaw, #OutdoorLaw, #OutdoorRecreationLaw, #SkiLaw,
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