Pavane v. Marte, 37 Misc. 3d 1216A; 2012 N.Y. Misc. LEXIS 5128; 2012 NY Slip Op 52060U
Posted: May 6, 2013 Filed under: Cycling, Legal Case, Minors, Youth, Children, New York, Summer Camp, Youth Camps | Tags: Central Park, Cyclists, Day Camp, Metro Areas, New York, New York City, NY, Oasis Children's Services, Plaintiff, Summary judgment, Summer Camp, Summer Enrichment program Leave a commentPavane v. Marte, 37 Misc. 3d 1216A; 2012 N.Y. Misc. LEXIS 5128; 2012 NY Slip Op 52060U
Martin Pavane and Merrill Pavane, Plaintiff(s), against Samidra Marte, Oasis Community Corporation and Oasis Children’s Services, Defendant(s).
33473/08
SUPREME COURT OF NEW YORK, KINGS COUNTY
37 Misc. 3d 1216A; 2012 N.Y. Misc. LEXIS 5128; 2012 NY Slip Op 52060U
August 9, 2012, Decided
NOTICE: THIS OPINION IS UNCORRECTED AND WILL NOT BE PUBLISHED IN THE PRINTED OFFICIAL REPORTS.
CORE TERMS: summary judgment, bicycle, street, crossing, counselor, emergency, crosswalk, walk, emergency doctrine, triable issues of fact, stop sign, deposition, cyclist, annexed, proximate cause, red light, matter of law, emergency situation, party opposing, affirmative defense, traffic light, reasonableness, deliberation, speculative, unexpected, proceeded, favorable, surprise, sudden, pushed
HEADNOTES
[*1216A] Negligence–Emergency Doctrine.
JUDGES: [**1] Hon. Bernard J. Graham, Acting Justice.
OPINION BY: Bernard J. Graham
OPINION
Bernard J. Graham, J.
Decision:
The captioned lawsuit was commenced by filing of a summons and complaint on or about December 8, 2008, by plaintiffs, Martin Pavane and Merrill Pavane, against defendants Samira Marte (incorrectly identified as “Samidra Marte”), Oasis Community Corporation, and Oasis Children’s Services, LLC. Plaintiffs’ claim is a negligence action against defendants stemming from a fall at Central Park and a derivative claim on behalf of plaintiff, Merrill Pavane.
Defendants move for summary judgment pursuant to CPLR § 3212 for dismissal of the plaintiffs’ complaint alleging that there are no triable issues of fact and that defendants are free from liability pursuant to the Emergency Doctrine’.
Background
Defendant Oasis Children’s Services, LLC (“Oasis”) is a company that runs summer enrichment programs for at-risk children in the tri-state area. They have several camp locations in New York City, including one in Central Park.
Defendant Oasis Community Corporation is a named defendant which is ostensibly related to Oasis Children’s Services, LLC.
During the summer of 2008, Oasis hired 18-year-old defendant Samira Marte [**2] (“Marte”) as a camp counselor. On August 22, 2008, Marte and another counselor, Rachel Carrion (“Carrion”), entered Central Park at 96th Street with their campers to reach a swimming pool at 110th Street. Their route required them to cross West Drive.
According to the deposition testimony of Ms. Marte, Rachel Carrion and several children crossed West Drive first. The walk signal changed to “do not walk” before Ms. Marte was able to cross with the rest of the group, so she stayed on the sidewalk with the children to wait for the light to change again. When the signal changed to “walk”, Ms. Marte followed camp guidelines and proceeded to the middle of the crosswalk to hold up her “stop/children crossing” sign. According to the deposition of Richard Thompson McKay, who is an Oasis supervisor and not a named party to the action, Oasis provided protocol training for all camp counselors on how to cross the street. Counselors are instructed to stand in the middle of the street with the stop sign before children may begin to pass. Counselors were also told that if it appears that a cyclist will not stop, then the counselors must first be “loud and verbal” and ask the cyclist to stop. If the [**3] cyclist still does not stop, then counselors must “put [their] body as best as [they] can in between bicyclist and the children that [they] have to protect.” (See Dep. of Richard Thompson McKay, pg. 11-12, annexed as Ex. “H” to the Aff. of Rodney E. Gould in support of motion for summary judgment).
Ms. Marte states that several bicyclists were traveling down West Drive and that all of them stopped for the red light except for “one person that kept going.” (See Dep. of Samira Marte, pg. 60-61, 73-74, annexed as Ex. “F” to the Aff. of Rodney E. Gould in support of motion for summary judgment). Ms. Marte observed the defendant, Martin Pavane (“Pavane”), approaching the red light on his bicycle and alleges that Mr. Pavane did not slow down. Since children were beginning to cross the street, Ms. Marte anticipated that the bicycle would collide with the crossing children and herself. In order to get Mr. Pavane to stop, Ms. Marte first waived her stop sign and yelled for him to stop. When the bicycle still did not stop or slow down, she tried to put herself in between the bicycle and the children by standing in front of the bicycle’s [***2] path. However, Ms. Marte was forced to move aside because [**4] she states that the bicycle was going too fast. She was afraid that the bicycle would run right into her and the children. Ms. Marte states that was the moment she decided to push Mr. Pavane’s arm with the stop sign (Marte Dep. pg. 74-77).
Discussion
In opposition to the defendants’ motion for summary judgment, plaintiffs argue that the defendants failed to include the Emergency Doctrine’ as an affirmative defense in their answer.
However, where the party opposing summary judgment has knowledge of the facts relating to the existence of an emergency and would not be taken by surprise with the use of the emergency defense, the doctrine does not have to be pleaded as an affirmative defense (see Bello v. Transit Auth. of NY City, 12 AD3d 58, 61, 783 N.Y.S.2d 648 (2nd Dept. 2004)). Here, plaintiffs cannot claim that they were taken by surprise by defendants’ emergency defense. The depositions provide full descriptions of facts describing an emergency situation.
A common law emergency doctrine is recognized in New York and it applies “when an actor is faced with a sudden and unexpected circumstance that leaves little or no time for thought, deliberation or consideration, or causes the actor to be reasonably so [**5] disturbed that the actor must make a speedy decision without weighing alternative courses of conduct. [The] actor may not be negligent if the actions taken are reasonable and prudent in the emergency context”. (Caristo v. Sanzone, 96 NY2d 172, 174, 750 N.E.2d 36, 726 N.Y.S.2d 334 (2001) (citing Rivera v. New York City Tr. Auth., 77 NY2d 322, 327, 569 N.E.2d 432, 567 N.Y.S.2d 629 (1991); see also Marks v. Robb, 90 AD3d 863, 935 N.Y.S.2d 593 (2nd Dept. 2011)). The depositions show that Marte was confronted with a sudden and unexpected emergency circumstance that left her with little time for deliberation. The evidence is credible that Marte pushed Pavane from his bicycle in order to prevent children from getting injured.
Ordinarily, the reasonableness of a party’s response to an emergency situation will present questions of fact for a jury, but it may be determined as a matter of law in appropriate circumstances (Bello v. Transit Auth. of NY City, 12 AD3d at 60; see also Koenig v. Lee, 53 AD3d 567, 862 N.Y.S.2d 373 (2nd Dept. 2008); Vitale v. Levine, 44 AD3d 935, 844 N.Y.S.2d 105 (2nd Dept. 2007)).
In this case, defendants seek an award of summary judgment dismissing the plaintiffs’ claim which would require a determination by this Court that, as a matter of law, the actions taken by Ms. Marte were reasonable [**6] and did not present a question which should be presented to a jury. Although summary judgment is a drastic remedy, a court may grant summary judgment when the moving party establishes that there are no triable issues of material fact (see Rotuba Extruders v. Ceppos, 46 NY2d 223, 385 N.E.2d 1068, 413 N.Y.S.2d 141 (1978); Sillman v. Twentieth Century-Fox Film Corp., 3 NY2d 395, 144 N.E.2d 387, 165 N.Y.S.2d 498 (1957)).
Rachel Carrion, the co-counselor who is not a named party to the action, testified that she saw Pavane ride his bicycle towards the crosswalk where herself and Marte were crossing the street with children from the Oasis summer camp (see Carrion Dep. pg. 8-9 annexed to Gould [***3] Aff. in support of motion for summary judgment). Carrion testified that Pavane was approaching them “at [a] speed” and “would not stop” (Carrion Dep. pg. 10). The testimony of Ms. Carrion is completely consistent and corroborative of Ms. Marte’s testimony. Ms. Marte stated that Mr. Pavane was not going to stop and was about to hit the four children who were crossing in the crosswalk (Marte Dep. pg 61).
The majority of Pavane’s testimony consists of mere speculative and conclusory assertions because he claims to not recall most details. For example, Pavane did not recall [**7] whether he saw children on the street (see Pavane Dep. pg. 17, annexed to the Aff of Leon Sager in opposition to the motion for summary judgment), but states that “it’s certainly possible there were people there.” (Pavane Dep. pg. 17). Carrion testified that there definitely were children on both sides of the crosswalk and some crossing in the middle before Marte pushed Pavane off his bicycle (Carrion Dep. pg. 11). Pavane also does not recall whether Marte was holding a “stop, children crossing” sign or whether she was waving at him, but he does remember Marte being a young woman in her teens (Pavane Dep. Pg. 17), who was “doing something with her hands at the particular time when she stepped in front of [him]” (Pavane Dep. pg. 18).
In reviewing the offered testimony in support of the motion and the opposition to the motion, the evidence submitted must be viewed in the light most favorable to the party opposing the motion (see Branham v. Loews Orpheum Cinemas, Inc., 8 NY3d 931, 866 N.E.2d 448, 834 N.Y.S.2d 503 (2007)). Even assessing the available evidence in a light most favorable to Mr. Pavane, a neutral reading of the evidence would support a conclusion that Ms. Marte and the children were crossing the street with [**8] the “walk” sign in their favor; that Ms. Marte was positioned with her stop sign at the cross walk; and that Mr. Pavane was cycling into the crosswalk against the traffic light.
While this Court is hesitant to declare the actions of any party in an alleged tort claim to be reasonable as a matter of law, in certain cases, such as this, summary judgment may be appropriate. (see Bello v. Transit Auth. of NY City, 12 AD3d 58, 783 N.Y.S.2d 648 (2004). The actions of the defendant, Marte, must be considered reasonable given the emergency she faced and the potentially harmful consequences to the children she was protecting. It is also apparent that Mr. Pavane proceeded into the intersection against the traffic light and, would fairly be considered to be the proximate cause of his injury. Where it is clear that the plaintiff’s actions were the sole proximate cause of the accident, plaintiff’s mere speculative assertions that defendant may have failed to act properly is insufficient to raise a triable issue of fact to defeat a summary judgment motion. (see Goff v. Goudreau, 222 AD2d 650, 650, 635 N.Y.S.2d 699 (2nd Dept. 1995); Vitale v. Levine, 44 AD3d 935, 844 N.Y.S.2d 105 (2nd Dept. 2007)).
Conclusion
It is the finding of this Court that Mr. Pavane’s [**9] own failure to stop at the red light and yield to children crossing the street was the sole proximate cause of the incident. The actions of the camp counselor, Ms. Marte, in the context of crossing the street with young children who she feared would be injured by the cyclist can only be considered reasonable and appropriate in the given circumstances. Mr. Pavane has not offered evidence which would raise a triable issue of fact as to the reasonableness of Ms. Marte’s actions and to subject the defendants here to the expenses of a trial on this matter would be exceedingly unjust.
Accordingly, defendants’ motion for summary judgment is granted and the plaintiff’s complaint is dismissed.
This shall constitute the decision and order of this Court.
Dated: August 9, 2012
/s/
Hon. Bernard J. Graham, Acting Justice
Supreme Court, Kings CountyBottom of Form
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In this mountain biking case, fighting each claim pays off.
Posted: September 10, 2012 Filed under: Cycling, Tennessee | Tags: Boy Scout, Boy Scouts, BSA, Gross negligence, MAINE, Mountain bike, Mountain Bike Trail, Mountain biking, Punitive damages, Scouting, Summer Camp, USA Cycling 1 CommentN.H., a minor child, v. Sequoyah Council, Inc., Boy Scouts of America, 2012 U.S. Dist. LEXIS 87452
Gross negligence claim is thrown out because the complaint failed to plead enough facts.
This case is about a minor, who was attending a Boy Scout summer camp. While at camp, he went mountain biking on a camp bicycle. While riding the mountain bike the plaintiff alleges the brakes were not working and the plaintiff road off the trail and hit a tree.
The plaintiff’s complaint alleged the following:
(1) it failed to keep the mountain bike trails in a reasonably safe condition; (2) it failed to warn the minor plaintiff of hidden perils of the trails which defendant knew, or by reasonable inspection, could have discovered; (3) it failed to properly train its employees; (4) it failed to properly mark the bike trail; (5) it failed to properly evaluate and assess the skill of the minor plaintiff before allowing him to ride the trail; and (6) it was “negligent in other manners.
The plaintiff also requested gross negligence as part of his damages. His complaint stated, “the negligence of Defendant . . . was the proximate cause of the injuries to the minor plaintiff….”
Generally, gross negligence is defined as greater than normal negligence. (Only a lawyer could get away with that definition….) A better definition might be:
Another definition is the failure to exercise that care that even a careless person would exercise. Gross Negligence falls just short of a reckless disregard of the consequences of the actor’s acts. Aggravated Negligence is gross negligence. The actual differences between ordinary negligence and gross negligence are difficult to define, and ordinarily done by the jury.[1]
For more on Gross Negligence see Good Release stops lawsuit against Michigan’s bicycle renter based on marginal acts of bicycle renter or New Jersey upholds release for injury in faulty bike at fitness club.
The defendant camp filed a motion for summary judgment to eliminate the claim for gross negligence. The reason is based upon the complaint the allegation of gross negligence is the only real basis for the demand for punitive damages. Eliminate the claim for gross negligence and you have taken most of the fight out of the gross negligence claim and a lot of the ability of the plaintiff to threaten from the case.
A claim of gross negligence is not enough under Tennessee’s law to allow a jury to award punitive damages. Punitive damages can only be awarded if the jury finds the defendant acted “(1) intentionally, (2) fraudulently, (3) maliciously, or (4) recklessly.
Intentionally, fraudulently and maliciously are easily understood. In Tennessee, a person acts recklessly when:
A person acts recklessly when the person is aware of, but consciously disregards, a substantial and unjustifiable risk of such a nature that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances.
Because the complaint did not allege how or why the defendant was aware of the problems with the bicycle or the trail, he could not sustain a claim for gross negligence and consequently, claim punitive damages.
The court granted the defendants claim.
So?
Not every lawsuit provides the opportunity to start and win a fight based on the pleadings. However, every pleading, complaint, should be examined to make sure, under the law of that state, the pleadings make a legal case.
Even if a flaw is found, you need to examine the cost of the fight and the benefit. Sometimes a flaw can be allowed to survive to be attacked later. However, litigation is a fight and every opportunity to weaken the opposing side should be taken.
For additional cases looking at the legal issues of cycling see:
Connecticut court works hard to void a release for a cycling event
Good Release stops lawsuit against Michigan bicycle renter based on marginal acts of bicycle renter
How to fight a Bicycle Product Liability case in New York. One step at a time
Maine upholds release in a mountain bike race and awards defendants costs and attorney fees
New York Decision explains the doctrine of Primary Assumption of the Risk for cycling
PA court upholds release in bicycle race
Release for training ride at Triathlon training camp stops lawsuit
Release stops most of the litigation against a ski area and USA Cycling in a Mountain Bike race but leaves other members out in the cold or should I say stuck in the courtroom
Summary Judgment granted for bicycle manufacturer and retailer on a breach of warranty and product liability claim.
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[1] Outdoor Recreation Risk Management, Insurance and Law, Chapter 7
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Camp not liable for soccer injury because camp adequately supervised the game
Posted: July 16, 2012 Filed under: New York, Sports, Summer Camp | Tags: #Soccer, Defendant, Forseeable, Harris, Infant, New York, NY, Standard of Care, Summary judgment, Summer Camp, Supervision Leave a commentHarris v Five Point Mission–Camp Olmstedt, 73 A.D.3d 1127; 901 N.Y.S.2d 678; 2010 N.Y. App. Div. LEXIS 4526; 2010 NY Slip Op 4547
Both defendants and plaintiffs need to understand the standard of care, and the limit of liability the defendant will be held accountable to.
In this case from New York, a 13-year-old called an infant by the court, sued a summer camp for an injury to his leg. While attempting to kick the ball, he and another camper collided and the other camper fell on the plaintiff’s leg. The plaintiff sued the camp for the injury. The defendant filed a motion for summary judgment, which was denied. The defendant appealed the motion and the appellate court overturned the lower court and dismissed the case.
An infant from a legal perspective is not a baby. An infant is anyone under the age of 18, not an adult.
The sole issue was the standard of care, and the level of supervision the camp owed to the plaintiff. The court held the standard of care a camp or school owed was not an insurer of the safety of the camper but only liable for foreseeable injuries. Even then those foreseeable injuries must be caused by an absence of adequate supervision.
Schools or camps are not insurers of the safety of their students or campers, as they “cannot reasonably be expected to continuously supervise and control all of their movements and activities” Rather, schools and camps owe a duty to supervise their charges and will only be held liable for foreseeable injuries proximately caused by the absence of adequate supervision.
The lack of adequate supervision must relate to the injury. A failure to supervise, which created the foreseeable injury must be the cause of the accident. Additionally, that accident must be one that can be supervised. If the accident occurs in such a manner that supervision cannot intervene, then there can be no liability.
Moreover, even if an issue of fact exists as to negligent supervision, liability does not lie absent a showing that such negligence proximately caused the injuries sustained “Where an accident occurs in so short a span of time that even the most intense supervision could not have prevented it, any lack of supervision is not the proximate cause of the injury and summary judgment in favor of the … defendant is warranted”
There was also an issue that the expert witness did not discuss all the issues necessary to prove the camp was liable for the injury. The expert report stated the camp should have provided shin guards, and that shin guards were required. However, the expert did not state that the type of game being played by the plaintiff, an informal summer camp game was held to the same rules as high school games.
So
The plaintiff’s complaint did not seem to contemplate the level of supervision required from a camp. Like schools, camps are not required to keep kids safe. They are required to do the following.
· Keep kids safe from foreseeable risks
· Adequately supervise kids.
The first is the hardest. Kids can get hurt any and always. Consequently, foreseeable is very hard. However, the easiest way to see foreseeable and for the plaintiff to prove foreseeable is if the accident had occurred previously at your camp or any camp. If you keep track of injuries and accidents, you better do something about each and every one of the reports. A report is proof of the foreseeability of a risk.
That is a great reason to attend your trade association meeting or conference. You can learn from other members of your industry or your insurance carrier about the accidents they have had. If you have a similar program, you have been given a gift, and you have identified foreseeable before a plaintiff has.
 James H. “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 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
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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Harris v Five Point Mission–Camp Olmstedt, 73 A.D.3d 1127; 901 N.Y.S.2d 678; 2010 N.Y. App. Div. LEXIS 4526; 2010 NY Slip Op 4547
Posted: July 16, 2012 Filed under: Legal Case, New York, Sports, Summer Camp | Tags: #Soccer, New York, Summer Camp Leave a commentTo Read an Analysis of this decision see: Camp not liable for soccer injury because camp adequately supervised the game
Harris v Five Point Mission–Camp Olmstedt, 73 A.D.3d 1127; 901 N.Y.S.2d 678; 2010 N.Y. App. Div. LEXIS 4526; 2010 NY Slip Op 4547
Nikki Harris, Respondent, v Five Point Mission–Camp Olmstedt, Appellant. (Index No. 38156/07)
2009-08327
SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT
73 A.D.3d 1127; 901 N.Y.S.2d 678; 2010 N.Y. App. Div. LEXIS 4526; 2010 NY Slip Op 4547
May 25, 2010, Decided
SUBSEQUENT HISTORY: As Amended June 21, 2010.
HEADNOTES
Negligence–What Constitutes.–Defendant was not liable for injuries sustained by infant while playing soccer at sleepaway summer camp operated by defendant; defendant established that it did not negligently supervise infant during soccer game in which he was injured and that it did not negligently maintain soccer field where accident occurred.
COUNSEL: [***1] Molod Spitz & DeSantis, P.C., New York, N.Y. (Salvatore J. DeSantis and Marcy Sonneborn of counsel), for appellant.
Kenneth J. Ready, Mineola, N.Y. (Steven T. Lane of counsel), for respondent.
JUDGES: REINALDO E. RIVERA, J.P., ANITA R. FLORIO, DANIEL D. ANGIOLILLO, PLUMMER E. LOTT, JJ. RIVERA, J.P., FLORIO, ANGIOLILLO and LOTT, JJ., concur.
OPINION
[*1127] [**679] In an action to recover damages for personal injuries, etc., the defendant appeals from an order of the Supreme Court, Kings County (Schack, J.), dated July 17, 2009, which denied its motion for summary judgment dismissing the complaint.
Ordered that the order is reversed, on the law, with costs, and the defendant’s motion for summary judgment dismissing the complaint is granted.
On the morning of July 29, 2006, the then 13 1/2-year-old infant, Devante Harris (hereinafter Devante), allegedly was injured while playing soccer at the sleepaway summer camp operated by the defendant, Five Point Mission–Camp Olmstedt. According to Devante’s deposition testimony, the accident happened over a 15-second period of time. After Devante fell while attempting to kick a soccer ball, another camper, attempting to kick the same ball, made contact with Devante’s [***2] leg and then fell on Devante’s leg. At the time of the accident, there were two counselors supervising the soccer game, while acting as opposing goalies, one of whom was only 12 feet away from Devante when the accident occurred. Furthermore, during the hour before the accident occurred, neither Devante nor anyone else [*1128] fell during the game. According to the deposition testimony of the camp director, Nolan Walker, the camp hired a private landscaping company to maintain the field. Additionally, in the two weeks leading up to the date of the accident, he did not observe any defects in the field.
[HN1] Schools or camps are not insurers of the safety of their students or campers, as they “cannot reasonably be expected to continuously supervise and control all of their movements and activities” (Cohn v Board of Educ. of Three Vil. Cent. School. Dist., 70 AD3d 622, 623, 892 NYS2d 882 [2010]; see Mirand v City of New York, 84 NY2d 44, 49, 637 NE2d 263, 614 NYS2d 372 [1994]). Rather, schools and camps owe a duty to supervise their charges and will only be held liable for foreseeable injuries proximately caused by the absence of adequate supervision (see Mirand v City of New York, 84 NY2d at 49; Doe v Department of Educ. of City of New York, 54 AD3d 352, 353, 862 NYS2d 598 [2008]; [***3] Paca v City of New York, 51 AD3d 991, 992, 858 NYS2d 772 [2008]). Moreover, even if an issue of fact exists as to negligent supervision, liability does not lie absent a showing that such negligence proximately caused the injuries sustained (see Odekirk v Bellmore-Merrick Cent. School Dist., 70 AD3d 910, 895 NYS2d 184 [2010]; Siegell v Herricks Union Free School Dist., 7 AD3d 607, 777 NYS2d 148 [2004]). “Where an accident occurs in so short a span of time that even the most intense supervision could not have prevented it, any lack of supervision is not the proximate cause of the injury and summary judgment in favor of the … defendant[] is warranted” (Convey v City of Rye School Dist., 271 AD2d 154, 160, 710 NYS2d 641 [2000]; see Odekirk v Bellmore-Merrick Cent. School Dist., 70 AD3d 910, 895 NYS2d 184 [2010]; Paca v City of New York, 51 AD3d at 993; Capotosto v Roman Catholic Diocese of Rockville Ctr., 2 AD3d 384, 385-386, 767 NYS2d 857 [2003]).
The defendant made a prima facie showing of its entitlement to judgment as a matter of law. It established, by way of Devante’s deposition testimony, that it did not negligently supervise him during the soccer game in which he was injured (see Mirand v City of New York, 84 NY2d at 49; Calcagno v John F. Kennedy Intermediate School, 61 AD3d 911, 912, 877 NYS2d [**680] 455 [2009]). It also established [***4] that it did not negligently maintain the soccer field where the accident occurred (see Lopez v Freeport Union Free School Dist., 288 AD2d 355, 356, 734 NYS2d 97 [2001]).
In response, the plaintiff failed to show the existence of a triable issue of fact. Devante’s affidavit submitted in opposition to the motion merely raised a feigned issue of fact designed to avoid the consequences of his earlier deposition testimony, and thus was insufficient to defeat the defendant’s motion for summary judgment dismissing the complaint (see Denicola v [*1129] Costello, 44 AD3d 990, 844 NYS2d 438 [2007]). The affidavit of Devante’s mother, the plaintiff, Nikki Harris, also was insufficient to defeat the defendant’s motion, as she did not have personal knowledge of the facts underlying the claim and relied upon inadmissible hearsay in her averments (see New S. Ins. Co. v Dobbins, 71 AD3d 652, 894 NYS2d 912 [2010]).
The plaintiff’s expert’s affidavit also was insufficient to raise a triable issue of fact as to whether the defendant’s failure to provide Devante with shin guards constituted negligence. The affidavit improperly relies on the version of the events set forth in Devante’s affidavit in opposition to the motion and not upon his deposition testimony. Furthermore, in [***5] concluding that the defendant summer camp was negligent in failing to provide Devante with shin guards during the soccer game, the expert failed to allege that sleepaway summer camps generally provide shin guards to campers during informal soccer games like the one at issue (see Diaz v New York Downtown Hosp., 99 NY2d 542, 545, 784 NE2d 68, 754 NYS2d 195 [2002]; Walker v Commack School Dist., 31 AD3d 752, 820 NYS2d 287 [2006]). Nor does he allege, based upon his personal knowledge or experience, that the rules of college, high school, or youth soccer leagues, which he contends require the use of shin guards, have been implemented by or are the generally accepted practice in informal summer camp soccer games such as the one in which Devante was injured (see Diaz v New York Downtown Hosp., 99 NY2d at 545; Walker v Commack School Dist., 31 AD3d 752, 820 NYS2d 287 [2006]).
Accordingly, the defendant’s motion for summary judgment dismissing the complaint should have been granted (see generally Alvarez v Prospect Hosp., 68 NY2d 320, 324-325, 501 NE2d 572, 508 NYS2d 923 [1986]). Rivera, J.P., Florio, Angiolillo and Lott, JJ., concur.
G-YQ06K3L262
Summer Camp, Zip line injury and confusing legal analysis in Washington
Posted: April 16, 2012 Filed under: Minors, Youth, Children, Summer Camp, Washington, Youth Camps, Zip Line | Tags: Defendant, Duty of care, Plaintiff, Ropes course, Summary judgment, Summer Camp, zip line, Zip-line, Zipline Leave a comment
A 200′ Mammoth Deluxe zip line installed over a pond. (Photo credit: Wikipedia)
Facts, no prepared defense and the plaintiff will get to go to trial.
In this case, I think the parents of a child who was attending the summer camp opted to ride the camp zip line. The zip line had two ropes that attached the rider to the haul line. The adult plaintiff when getting ready to ride wrapped one rope around his fingers. When he launched, the rope tightened almost severing his fingers.
The defendant filed a motion for summary judgment. However, the analysis by the court did not read like the normal decisions on motions for summary judgment and started out by denying part of the plaintiff’s argument.
Summary of the case
The plaintiff argued the summer camp, landowner, owed him a duty of ordinary care. The court found this really did not apply to this case, and the duty was a duty to disclose rather than a duty of ordinary care. However, the court allowed this argument to proceed.
Under Washington’s law, the duty of ordinary care is defined as:
a) knows or has reason to know that the chattel is or is likely to be dangerous for the use for which it is supplied, and
b) has no reason to believe that those for whose use the chattel is supplied will realize its dangerous condition, and
c) fails to exercise reasonable care to inform them of its dangerous condition or of the facts which make it likely to be dangerous.
The court then argued that the plaintiff was arguing the wrong legal issues because the plaintiff was arguing the plaintiff was a landowner; however, the injury did not occur on the land.
Because the injury the plaintiff received was based on the acts of the plaintiff, wrapping a rope around his hand, there was no violation of a duty by the defendant.
Plaintiff’s injury was the natural result of wrapping a rope around one’s hand and then suspending one’s body from that rope. This was not a latent or hidden condition that only defendant could know. Common sense of a capable adult is sufficient to inform a rider of this danger. Plaintiff admitted as much in his deposition:
Q. Did you know that if you wrapped the rope around your fingers, and then you put weight on the rope, that would tighten and cinch around your fingers?
A. The thought did not cross my mind.
Q. Okay. You didn’t think about that correct?
A. Correct.
Q. But if you had thought about it, you would have been able to figure that out, correct?
A. If someone asked me?
Q. Yes.
A. Yes.
Because the plaintiff admitted that if he thought about it, he would have realized that his actions would injure his hand, the defendant did not owe him a greater duty than it had done.
The plaintiff then stretched with two additional causes or claims. The first was the defendant had violated a state statute because the zip line was not inspected by the state. However, the statute that the plaintiff tried to apply, the amusement ride statute, did not include zip lines in its definitions until after the plaintiff’s accident. The statute at the time the plaintiff was injured did not apply to zip lines.
The next argument is farther out there, and exponentially scarier. The plaintiff argued that a zip line should be classified as a common carrier. A common carrier under most state interpretations are airlines, trains, buses, etc. Those types of transportation, carriers for hire, where the customer pays to be moved from one place to the next owe their customers the highest degree of care. The transportation must be for the purpose of movement, not amusement. The scary part is a common carrier owes the highest degree of care to its customers.
This definition means that a common carrier is liable in most situations for any injury to its passengers.
However, the court did not find a zip line was a common carrier. Thankfully.
So Now What?
The obvious issue that was missed, was the camp should have been using a release. An adult is on the property having fun; an injury will occur.
A motion for summary judgment is used when the legal arguments against a claim are sufficient to eliminate that claim. In most cases, this ends the lawsuit as long as all claims are ruled in favor of the defendant. Here the one claim, no matter how sketchy is probably going to allow the plaintiff to recover some amount of money.
Based on the ruling, the plaintiff will get his day in court or be paid not to go to court. A slip when someone is loading a zip line, no release and a traumatic injury add up to a big lawsuit.
What do you think? Leave a comment.
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Oldja v.Warm Beach Christian Camps and Conference Center, 793 F. Supp. 2d 1208; 2011 U.S. Dist. LEXIS 67966
Posted: April 16, 2012 Filed under: Legal Case, Minors, Youth, Children, Summer Camp, Washington, Youth Camps, Zip Line | Tags: Camp, SEATTLE, Summer Camp, zip line Leave a commentOldja v.Warm Beach Christian Camps and Conference Center, 793 F. Supp. 2d 1208; 2011 U.S. Dist. LEXIS 67966
Ted Oldja, Plaintiff, v. Warm Beach Christian Camps and Conference Center, Defendant.
CASE NO. C09-0122-JCC
United States District Court for the Western District of Washington
793 F. Supp. 2d 1208; 2011 U.S. Dist. LEXIS 67966
June 24, 2011, Decided
June 24, 2011, Filed
COUNSEL: [**1] For Ted Oldja, Plaintiff: Kenneth R Friedman, LEAD ATTORNEY, FRIEDMAN RUBIN, BREMERTON, WA; Michael N White, FRIEDMAN RUBIN, (BREMERTON), BREMERTON, WA.
For Warm Beach Christian Camps and Conference Center, Defendant: David R Goodnight, Vanessa Soriano Power, STOEL RIVES (WA), SEATTLE, WA; Francis S Floyd, Nicholas L Jenkins, FLOYD PFLUEGER & RINGER PS, SEATTLE, WA.
JUDGES: John C. Coughenour, UNITED STATES DISTRICT JUDGE.
OPINION BY: John C. Coughenour
OPINION
[*1209] ORDER
This matter comes before the Court on Defendant’s motion for summary judgment (Dkt. No. 49), Plaintiff’s response (Dkt. No. 53), and Defendant’s reply. (Dkt. No. 59.) Having thoroughly considered the parties’ briefing and the relevant record, the Court finds oral argument unnecessary and hereby GRANTS the motion for the reasons explained herein.
I. BACKGROUND
In the summer of 2007, Ted Oldja attended a camp at Warm Beach Christian Camp (“Warm Beach”) in Stanwood, Washington. Mr. and Mrs. Oldja decided to ride on the zip line operated by Warm Beach. The zip line carried riders in a harness suspended from a cable by two ropes: a white rope, which acts as the primary connection between the harness and the cable, and bears the load of the rider’s weight; and [**2] a black rope, which acts as a secondary connection between the harness and the cable, and can be used as a safety line to slow the rider down.
Before a user rides the zip line, it is the job of the launch facilitator to follow a safety procedure. First, the facilitator tells the rider that they can hold on to either the white and black ropes during the ride, or just the white rope. The facilitator instructs riders not to hold only the black secondary line, because it will slow them down or stop them completely. The facilitator then double-checks the harness configuration, pulley attachments, safety helmet, and carabiners. The launch facilitator calls “zip clear” to the landing facilitator to communicate that the rider is ready, and the landing facilitator responds “zip clear” to communicate that the path is clear for the rider.
After watching his wife on the ride, it was Mr. Oldja’s turn. The launch facilitator, Paul Matthewson, testified that he followed the proper safety procedures. (Dkt. No. 49 Ex. 2 at 51- 53.) Matthewson testified that he did not see Oldja wrap his fingers in the white primary rope, and that Oldja’s fingers were not wrapped in the rope when Matthewson cleared him [**3] to go. (Id. at 60.) Sometime after Matthewson called “zip clear,” Mr. Oldja, a mechanical engineer, wrapped his fingers in the white primary rope, and stepped off the platform. The load-bearing rope tightened [*1210] around his hand and crushed his fingers. Mr. Oldja was rushed to a hospital and has had several surgeries on his hand. Plaintiff filed suit against Warm Beach for negligence, product liability, and negligence per se under a variety of theories. Defendant now moves for summary judgment dismissal of all three of these claims. Plaintiff does not oppose summary judgment on the product liability claim.
II. APPLICABLE LAW
[HN1] Federal Rule of Civil Procedure 56(c) mandates that a motion for summary judgment be granted when “the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). There exists a genuine issue as to a particular fact–and hence that fact “can be resolved only by a finder of fact” at trial–when “[it] may reasonably be resolved in favor of either party”; conversely, there exists no genuine issue when reasonable [**4] minds could not differ as to the import of the evidence. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-52, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). Whether a particular fact is material, in turn, is determined by the substantive law of the case: “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Id. at 248. Summary judgment, then, demands an inquiry into “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law”; if applying the relevant law to those facts about which no two reasonable factfinders could disagree dictates that the moving party must prevail, then a motion for summary judgment must be granted. Id. at 250-52.
III. DISCUSSION
A. Duty of Ordinary Care
Plaintiff argues that it is well established that every business has a duty to use ordinary care in keeping its premises reasonably safe for use by business invitees. (Dkt. No. 53 at 10.) Defendant argues that Section 388 of the Second Restatement of Torts should govern the analysis. [**5] The Court addresses Section 388 below, but Section 388 governs only the duty to disclose and does not govern the duty of ordinary care. Defendant has not shown an absence of a genuine issue of material fact with respect to its alleged breach of the duty of ordinary care. Accordingly, summary judgment dismissal of this claim is denied.
B. Duty to Disclose
[HN2] With reference to a duty to disclose, The Supreme Court of Washington has adopted Section 388 of the Second Restatement of Torts, which states that the supplier is liable if he:
a) knows or has reason to know that the chattel is or is likely to be dangerous for the use for which it is supplied, and
b) has no reason to believe that those for whose use the chattel is supplied will realize its dangerous condition, and
c) fails to exercise reasonable care to inform them of its dangerous condition or of the facts which make it likely to be dangerous.
Fleming v. Stoddard Wendle Motor Co., 70 Wn.2d 465, 423 P.2d 926, 928 (Wash. 1967).
Plaintiff argues that he is choosing not to pursue his claims under Section 388. Rather, Plaintiff argues that the Court [*1211] should consider Section 343A, which creates a duty to protect invitees from known or obvious dangers when the [**6] landowner should anticipate the harm despite such knowledge and obviousness.
Plaintiff is misguided. [HN3] He may choose the claims he brings, but he cannot choose the standard the Court will apply to those claims. Section 343 governs liability for an activity or condition on the land. Section 388 governs liability for use of a chattel. “Chattel” means movable or transferable property. Black’s Law Dictionary (9th ed. 2009). Defendant argues that the zip line is movable property, and Plaintiff does not challenge this characterization. The Court agrees. Plaintiff’s injury was caused by equipment on the land, not the land itself. Accordingly, Section 388 governs Plaintiff’s claims. Lunt v. Mt. Spokane Skiing Corp., 62 Wn. App. 353, 814 P.2d 1189, 1192 (Wash. Ct. App. 1991) (where injury arises from equipment not land, Section 388 not Section 343 governs).
[HN4] Each of the three criteria in Section 388 must be satisfied. The Court will begin with consideration of the second criterion. To prevail on this element at the summary judgment phase, Plaintiff must show some evidence that Defendant had no reason to believe that riders of the zip line would realize the dangerous condition. This is a dense piece of legal language, [**7] so an illustration is helpful.
In Fleming v. Stoddard Wendle Motor Co., 70 Wn.2d 465, 423 P.2d 926 (Wash. 1967), a man disabled a safety feature on a truck that was designed to prevent the motor from starting if the car was in gear. He sold the truck to a mechanic and did not disclose that the safety feature had been disabled. When the purchaser started the truck, it lurched forward, striking and injuring the plaintiff. The Supreme Court of Washington noted that the man who had sold the car had no reason to believe that any future operator of the car would know that the safety feature had been disabled. Id. at 928. Because the seller had no reason to believe the defect would be discovered, he had a duty to warn of that defect. The defect was latent and no amount of common sense or automotive knowledge could inform a driver about that particular hazard. Dismissal of the seller was reversed.
In contrast, Mele v. Turner, 106 Wn.2d 73, 720 P.2d 787 (Wash. 1986) concerns a case where a young man borrowed a lawn mower from his neighbors, inserted his hand into the mower housing to clean out some wet grass, and injured four fingers. The young man admitted in an affidavit: “I obviously realized that one should not put [**8] his hand under the machine where the blade runs . . . .” Id. at 790. The Court held that because the dangerous condition was obvious and known, defendants had no legal duty to warn. Id. There was nothing latent about the defect, and common sense would inform the user of the hazard.
The present case is much closer to Mele than Fleming. Plaintiff’s injury was the natural result of wrapping a rope around one’s hand and then suspending one’s body from that rope. This was not a latent or hidden condition that only Defendant could know. Common sense of a capable adult is sufficient to inform a rider of this danger. Plaintiff admitted as much in his deposition:
Q. Did you know that if you wrapped the rope around your fingers and then you put weight on the rope, that that would tighten and cinch around your fingers?
A. The thought did not cross my mind.
Q. Okay. You didn’t think about that correct?
A. Correct.
Q. But if you had thought about it, you would have been able to figure that out, correct?
[*1212] A. If someone asked me?
Q. Yes.
A. Yes.
(Dkt. No. 50 at Ex. A 196:14-197:1.) Given Plaintiff’s admission that he would have realized the danger if he had thought about it, Plaintiff cannot credibly argue [**9] that Defendant had no reason to believe that he would realize the danger.
The only evidence Plaintiff offers on this point is the testimony of Dr. Richard Gill, a Human Factors Engineering consultant. Dr. Gill was disclosed as a rebuttal expert, and testified that the scope of his work was to provide rebuttal testimony to the three defense experts. (Dkt. No. 60 at Ex. 1, Ex 2 16:8-9.) Dr. Gill’s expert report provides a series of conclusions about the behavior of zip line riders that does not rebut any of the testimony of Defendant’s experts. Rather, this type of testimony should have been disclosed in the initial expert discovery responses and is therefore untimely. Accordingly, Dr. Gill’s testimony regarding the behavioral tendencies of zip line or challenge course participants is STRICKEN. Plaintiff has failed to demonstrate a genuine issue of material fact with respect to Defendant’s liability under Section 388.
C. Liability for violation of state regulations
Plaintiff’s next argument is that Defendant was negligent pursuant to RCW 5.40.050 for violation of a state statute. [HN5] WAC 296-403A-190 states that amusement rides must be inspected by certified inspectors. RCW 67.42.010 and [**10] WAC 296-403A-100(2) provide the definition of amusement rides, but do not mention zip lines. Plaintiff argues that these definitions do include zip lines, and relies on a series of communications with the State of Washington Department of Labor and Industries (“L&I”) in 2009 and 2010 in support of this contention. (Dkt. No. 50 at Ex. 11.)
The Court interprets these communications very differently from Plaintiff. It is clear from these emails that the decision to include zip lines in the definition of “amusement ride” under WAC 296-403A-100(2) was not made until late 2009 or early 2010, more than two years after Plaintiff injured his hand on Defendant’s zip line. (Dkt. No. 50 at Ex. 11.) Plaintiff does not address this chronology in his briefing. It is misleading in the extreme for Plaintiff to characterize Defendant’s zip line as “unlicensed” when the licensing body had not yet decided that a license was required. Plaintiff has failed to show a genuine issue of material fact with respect to Defendant’s failure to comply with licensing requirements.
D. Common Carrier Liability
Plaintiff’s third argument is that Defendant is subject to common carrier liability. [HN6] Under Washington law, the duty [**11] of a common carrier to safeguard passengers from injury requires the carrier to exercise the highest degree of care consistent with the practical operation of its business or its type of transportation. Benjamin v. Seattle, 74 Wn.2d 832, 447 P.2d 172 (1968). Plaintiff acknowledges that there is no Washington caselaw addressing the issue of whether a zip line qualifies as a “common carrier,” but argues that this Court should expand the definition to include zip lines and similar amusement rides. In support of this argument, Plaintiff mentions a series of California decisions holding that a higher standard of care applies to amusement rides. Gomez v. Superior Court, 35 Cal. 4th 1125, 29 Cal. Rptr. 3d 352, 113 P.3d 41, 47 (Cal. 2005) (holding that the same high standard of care applied to carriers of passengers should also apply to operators of roller [*1213] coasters); Neubauer v. Disneyland, 875 F. Supp. 672, 673 (C.D. Cal. 1995) (holding that under California’s broad common carrier statute, a Disneyland amusement ride may be a common carrier).
This argument stumbles into the yawning gap between the Washington and California common-carrier statutes. [HN7] California’s common carrier statute is broad: Everyone who offers to the public to carry persons, [**12] property, or messages, excepting only telegraphic messages, is a common carrier of whatever he thus offers to carry. Cal Civ Code § 2168. Washington’s common carrier statute is narrow and exhaustive:
“Common carrier” includes all railroads, railroad companies, street railroads, street railroad companies, commercial ferries, motor freight carriers, auto transportation companies, charter party carriers and excursion service carriers, private nonprofit transportation providers, solid waste collection companies, household goods carriers, hazardous liquid pipeline companies, and every corporation, company, association, joint stock association, partnership, and person, their lessees, trustees, or receivers appointed by any court whatsoever, and every city or town, owning, operating, managing, or controlling any such agency for public use in the conveyance of persons or property for hire within this state.
RCW 81.04.010(11). Plaintiff offers no argument or evidence for the proposition that this definition includes a zip line. Again, Plaintiff has failed to show a genuine issue of material fact with respect to Defendant’s liability as an alleged common carrier.
IV. CONCLUSION
Defendant’s motion [**13] for Summary Judgment (Dkt. No. 49) is GRANTED in part and DENIED in part. Plaintiff’s claims for breach of the duty of ordinary care survive summary judgment. Plaintiff’s claims for breach of the duty to disclose, claims relating to the violation of the WAC, and claims relating to common carrier liability are DISMISSED.
DATED this 24th day of June 2011.
/s/ John C. Coughenour
John C. Coughenour
UNITED STATES DISTRICT JUDGE
Delaware holds that mothers signature on contract forces change of venue for minors claims.
Posted: April 2, 2012 Filed under: California, Delaware, Jurisdiction and Venue (Forum Selection), Summer Camp | Tags: American Arbitration Association, Arbitration, California, Minor, Summer Camp, Youth Camp Leave a commentDoe v. Cedars Academy, LLC, 2010 Del. Super. LEXIS 559
Court recognizes that you can’t argue rights under the contract and void other parts of the contract in the same lawsuit.
This case alleges that the minor was assaulted at a school for students who have a need for academic and social skills development. To be enrolled in the school the mother had to sign a substantial contract. The contract included a release of liability (pre-injury release) and a venue and jurisdiction clause.
The minor was allegedly threatened and sexually assaulted by another student. The mother and son sued for.
“….negligence, gross negligence, and recklessness; one count raises a breach of contract claim, and one count raises a claim that Defendants violated John Doe’s substantive due process right to bodily integrity.”
The defendants, the school and the parent company of the school moved to dismiss the complaint for lack of personal jurisdiction. This means the contract says the jurisdiction is located in another state, therefor this court does not have the legal right to hear the claim. i.e. the jurisdiction clause in the contract between the parties.
Summary of the case
The school was located in Delaware; however, the agreement required arbitration in California. The venue and jurisdiction clause was extensive in the contract.
21. Governing Law/Venue: This Agreement, and all matters relating hereto, including any matter or dispute arising between the parties out of this Agreement, tort or otherwise, shall be interpreted, governed and enforced according to the laws of the State of California; and the parties consent and submit to the exclusive jurisdiction and venue of the California Courts in Los Angeles County, California, and any qualified (American Arbitration Association-approved) arbitration service in the State of California, County of Los Angeles, to enforce this Agreement. The parties acknowledge that this Agreement constitutes a business transaction within the State of California. 10
The court looked at four issues in reviewing the contract and the claims of the plaintiffs:
(A) whether the Agreement is binding as to Jane Doe; [the mother]
(B) whether the Agreement is binding as to John Doe; [the son]
(C) whether the pre-injury release provision renders the entire Agreement unenforceable; and, if not
(D) whether the choice of law, choice of forum, and/or arbitration provisions of the Agreement are controlling.
The issue of whether the contract is binding on the mother. The court found it was because the mother also sued for damages under the contract. Here the court found if you are suing for damages under the contract, you cannot claim you are not part of the contract.
The court also held, in what was one of the clearest statements on this issue I’ve read, that the mother could not avail herself of the services of the defendant and put her son in the school and then claim the contract did not apply to her. If the contract allowed her to put her son in the school, then the contract applied to her.
But for the right to contact as a mother, there would be no services for children.
This same analysis was applied to whether or not the minor was bound by the agreement. If the minor could attend the school, based on the contract, then the minor had to be bound by the contract.
To conclude that John Doe is not bound by the Agreements otherwise enforceable terms, as Plaintiffs contend, simply because he is a minor would be tantamount to concluding that a parent can never contract with a private school (or any other service provider) on behalf and for the benefit of her child. As a practical matter, no service provider would ever agree to a contract with a parent if a child could ignore the provisions of the contract that pertain to him without recourse.
The court did not determine or decided if a parent can bind a minor to a pre-injury release. The court held that the contract allowed the court to exclude for the sake of argument, any part of the contract that it felt was unenforceable and therefore, the court could decide the issue without deciding the release issue.
The court then found the jurisdiction and venue clause were valid, and the case must be sent to California. Whether that was going to be a California court or arbitration, as required by the contract, in California was up to the California court.
At this point, the plaintiff argued the minute aspects of the contract did not force the case to be sent to California. This forced the court to scrutinize the agreement, down to the placement of a semi-colon. The court determined the jurisdiction and venue portion of the agreement applied.
Unless the forum selection clause “is shown by the resisting party to be unreasonable under the circumstances,” such clauses are prima facie valid. A choice of forum provision will be deemed “unreasonable” only when its enforcement would seriously impair the plaintiff’s ability to pursue its cause of action.” Mere inconvenience or additional expense is not sufficient evidence of unreasonableness.
So Now What?
Over and over I have stressed the importance of a well-written jurisdiction and venue (choice of forums) clause in your release and in all documents. Here again, this clause will make litigation more difficult for the plaintiff.
You want the lawsuit in your community. Most of the witnesses are usually located there, the business is there, and you are better prepared to defend a claim there.
Another issue that was not brought up the court, but is present in the case is the decision on arbitration. Arbitration may be a great item for you to use if you are dealing with minors for several reasons.
Arbitration is cheaper and quicker than a trial. The rules governing arbitration have a shorter time frame and do not allow as much time for discovery.
Arbitrators, by statute, are usually limited on the type of amount of damages that they can award. As such, punitive or other excessive damages may not be awarded by an arbitrator.
However, arbitration is not necessarily the way to go in every case. Arbitration does not allow, normally for motions for summary judgment. If you have a well-written release in a state that allows the use of releases, you will have a faster and better result going to court and filing a motion for summary judgment.
Whether or not to put arbitration in a release or other contract is one to be carefully reviewed based on your state, your state law and your situation with your attorney.
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,
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Doe v. Cedars Academy, LLC, 2010 Del. Super. LEXIS 559
Posted: April 2, 2012 Filed under: California, Delaware, Jurisdiction and Venue (Forum Selection), Legal Case, Summer Camp | Tags: Aspen Education Group, California, Delaware, Minor, Parol evidence rule, Summer Camp, Youth Camp Leave a commentTo Read an Analysis of this decision see
Delaware holds that mothers signature on contract forces change of venue for minors claims.
Doe v. Cedars Academy, LLC, 2010 Del. Super. LEXIS 559
John Doe and Jane Doe, individually, and as Guardian and Next Friend of John Doe, a minor, Plaintiffs, v. Cedars Academy, LLC, and Aspen Education Group, Inc., Defendants.
C.A. No. 09C-09-136 JRS
Superior Court of Delaware, New Castle
2010 Del. Super. LEXIS 559
July 20, 2010, Submitted
October 27, 2010, Decided
Notice:
This opinion has not been released for publication. Until released, it is subject to revision or withdrawal.
SUBSEQUENT HISTORY: Reargument denied by Doe v. Cedars Acad., LLC, 2011 Del. Super. LEXIS 18 (Del. Super. Ct., Jan. 19, 2011)
PRIOR HISTORY: [*1]
Upon Consideration of Defendants’ Motions to Dismiss.
DISPOSITION: GRANTED.
CASE SUMMARY:
PROCEDURAL POSTURE: The court considered a motion to dismiss (Del. Super. Ct. R. Civ. P. 12(b)(6)) filed by the defendants, a limited liability company (LLC) and a corporation, seeking an order dismissing a complaint filed by plaintiffs, a mother and her son, in which plaintiffs alleged the mother entered into a contract with the LLC to enroll her son in a boarding school and that, while a student there, he was sexually assaulted and threatened by a fellow student.
OVERVIEW: A fair reading of the complaint indicated plaintiffs alleged defendants were liable for damages for breach of the contract and for breach of common law duties of care. The court found a reasonable person would conclude that the mother objectively manifested her assent to be bound by the terms of the contract by paying tuition to the school and entrusting her son to the school as contemplated by the contract. The son, a minor, was also bound by the agreement, entered into on his behalf. Even if a pre-injury release was invalid, it would not render the entire agreement unenforceable. After reviewing the provisions within the four corners of the contract, the court concluded the parties intended to consent to the exclusive jurisdiction of California courts or arbitration panels to litigate their claims, based on a forum selection clause. Other than arguing that the contract was invalid because it was unconscionable, plaintiffs did not provide any support for their claim that the court should ignore the forum selection clause. Given the law in Delaware that choice of forum provisions were enforceable absent a showing of unreasonableness, the court declined to exercise jurisdiction.
OUTCOME: The motion to dismiss was granted.
COUNSEL: Joseph J. Rhoades, Esquire, Stephen T. Morrow, Esquire, LAW OFFICE OF JOSEPH J. RHOADES, Wilmington, Delaware. Attorneys for Plaintiffs.
Norman H. Brooks, Jr., MARKS, O’NEILL, O’BRIEN & COURTNEY, P.C., Wilmington, Delaware. Attorney for Defendants.
JUDGES: Joseph R. Slights, III, Judge.
OPINION BY: Joseph R. Slights, III
OPINION
MEMORANDUM OPINION
SLIGHTS, J.
I.
Before the Court is a Motion to Dismiss filed by the Defendants, Cedars Academy, LLC (“Cedars”) and Aspen Education Group, Inc. (“Aspen”) (collectively “the Defendants”). The motion seeks an order dismissing the Complaint filed by John Doe and his mother Jane Doe (collectively “Plaintiffs”), 1 in which Plaintiffs allege that Jane Doe entered into a contract with Cedars to enroll her son in the Cedars Academy Boarding School (“Cedars Academy”) and that, while a student there, John Doe was sexually assaulted and threatened by a fellow student. 2
1 Plaintiffs have used pseudonyms, presumably because of the sensitive nature of the allegations.
2 Compl. ¶ 7.
The Complaint contains five counts: three counts raise tort-based claims including negligence, gross negligence, and recklessness; 3 one count raises a [*2] breach of contract claim, 4 and one count raises a claim that Defendants violated John Doe’s substantive due process right to bodily integrity. 5 Defendants move to dismiss all counts for lack of subject matter jurisdiction and improper venue, and also based on a pre-injury release signed by Jane Doe. Defendant Aspen also moves to dismiss for lack of personal jurisdiction. Upon review of the motion, and the responses thereto, the Court determines that the forum selection clause of the operative contract (selecting California as the exclusive forum) is enforceable as to all of the parties and, as such, the motion to dismiss this action must be GRANTED.
3 Compl. ¶¶ 11-20, 26-29, 30-31.
4 Compl. ¶¶ 21-25.
5 Compl. ¶¶ 32-39.
II.
On September 15, 2007, Jane Doe entered into a contract with Cedars (hereinafter “the Agreement”) to enroll her minor son, John Doe, as a full time student at the Cedars Academy in Bridgeville, Delaware. 6 Cedars Academy is a private preparatory boarding school for students who demonstrate a need for academic and social skill development. 7 The Agreement between Ms. Doe and Cedars contained the following provisions relevant to the controversy sub judice:
5. Assumption of [*3] the Risks; Releases and Indemnities: Sponsor acknowledges serious hazards and dangers, known and unknown, inherent in the Program, including but not limited to vocational activities, emotional and physical injuries, illness or death that may arise from strenuous hiking, climbing, camping in a natural environment, exposure to the elements, plants and animals, running away from the Program, “acts of God” (nature), physical education activities, water sports, stress, involvement with other students, self-inflicted injuries, and transportation to and from activities. Sponsor understands that in participating in the Program Student will be in locations and using facilities where many hazards exist and is aware of and appreciates the risks, [sic] which may result. Sponsor understands that accidents occur during such activities due to the negligence of others, which may result in death or serious injury. Sponsor and Student are voluntarily participating in the Program with knowledge of the dangers involved and agree to accept any and all risks. In consideration for being permitted to participate in the Program, Sponsor agrees to not sue, to assume all risks and to release, hold harmless, [*4] and indemnify Cedars and any and all of its predecessors, successors, officers, directors, trustees, insurers, employees … including, but not limited to, Aspen Education Group, Inc. (collectively all of these above persons and entities shall be referred to as the “Released Parties” hereafter) who, through negligence, carelessness or any other cause might otherwise be liable to Sponsor or Student under theories of contract or tort law. Sponsor intends by this Waiver and Release to release, in advance, and to waive his or her rights and discharge each and every one of the Released Parties, from any and all claims for damages for death, personal injury or property damage which Sponsor may have, or which may hereafter accrue as a result of Student’s participation in any aspect of the Program, even though that liability may arise from negligence or carelessness on the part of the persons or entities being released, from dangerous or defective property or equipment owned, maintained, or controlled by them, or because of their possible liability without fault. Additionally, Sponsor covenants not to sue any of the Released Parties based upon their breach of any duty owed to Sponsor or Student [*5] as a result of their participation in any aspect of the Program. Sponsor understands and agrees that this Waiver and Release is binding on his or her heirs, assigns and legal representatives. 8
15. Binding Arbitration: Any controversy or claim arising out of or relating to this contract, except at Cedars’ option the collection of monies owed by Sponsor to Cedars, shall be settled by binding arbitration conducted in the State of California in accordance with the rules of the American Arbitration Association; 9 and
21. Governing Law/Venue: This Agreement, and all matters relating hereto, including any matter or dispute arising between the parties out of this Agreement, tort or otherwise, shall be interpreted, governed and enforced according to the laws of the State of California; and the parties consent and submit to the exclusive jurisdiction and venue of the California Courts in Los Angeles County, California, and any qualified (American Arbitration Association-approved) arbitration service in the State of California, County of Los Angeles, to enforce this Agreement. The parties acknowledge that this Agreement constitutes a business transaction within the State of California. 10
6 Compl. [*6] ¶ 2.
7 Pls.’ Resp. Defs.’ Mot. to Dismiss Ex. A.
8 Agreement ¶ 5.
9 Agreement ¶ 15.
10 Agreement ¶ 21.
On September 21, 2007, John Doe began attending Cedars Academy and residing in one of its dormitories. 11 While there, John Doe was propositioned by another student to perform sexual acts. According to the Complaint, on one or more occasion, the other student (not named as a defendant or otherwise in the Complaint) entered John Doe’s dormitory room, threatened him and sexually assaulted him. 12 Plaintiffs allege that these sexual assaults resulted in physical and emotional injuries to John Doe and economic damages to both Plaintiffs. 13 A fair reading of the Complaint indicates that Plaintiffs allege Defendants are liable for their damages both as a result of having breached the Agreement and having breached common law duties of care. 14
11 Compl. ¶ 7.
12 Id.
13 Compl. ¶¶ 7-10.
14 See Id. (Counts I through IV).
III.
In support of their motion, Defendants argue that the Agreement is enforceable against Jane Doe as the signatory and John Doe as a third party beneficiary. 15 Because both parties are bound by the Agreement, Defendants argue that Delaware’s preference for enforcing choice of forum provisions [*7] should prevail when, as here, the selected jurisdiction (California) has a “material connection” with the transaction. 16 Finally, Defendants assert that the arbitration provision of the Agreement should be honored because Jane Doe freely entered into the Agreement for the benefit of her minor son and John Doe received the benefit of the Agreement in the form of student housing, meals, and education. 17 According to the Defendants, he “who accepts the benefits of the contract, is also bound by any burdens or restrictions created by it.” 18
15 Defs.’ Letter Mem. pgs. 1-4.
16 Id. at 5.
17 Id. at 4.
18 Id.
In response, Plaintiffs first argue that the Agreement is not enforceable as to Jane Doe or John Doe because its “assumption of the risks; releases and indemnities” provision is invalid as a matter of law. According to Plaintiffs, Delaware courts look with disfavor upon clauses which exculpate a party from the consequences of that party’s own negligence. 19 Moreover, Plaintiffs argue that parents do not have the authority to execute a pre-injury release on behalf of their children. Such pre-injury releases “deprive children of the legal relief necessary to redress negligently inflicted injuries,” [*8] according to Plaintiffs, and are thus void as against public policy. 20 Because the Agreement contains a pre-injury release provision that purports to release a minor’s claim, and an invalid indemnification provision, Plaintiffs contend that the entire Agreement is unenforceable. 21
19 Pls.’ Resp. Defs.’ Letter Mem. pg. 2.
20 Id. at 7.
21 Id. at 6-7.
Plaintiffs next argue that even if the Agreement is enforceable against Jane Doe, it is not enforceable against John Doe because he is not a party to the Agreement. In this regard, Plaintiffs contend that the Agreement fails to identify John Doe as a party to the Agreement, that John Doe is not a signatory to the Agreement, and that there is no language in the Agreement to suggest that Jane Doe was contracting on John Doe’s behalf. 22 Thus, according to the Plaintiffs, the Agreement is between Jane Doe and Cedars only and does not bind John Doe. 23 Plaintiffs further contend that even if John Doe is considered a third party beneficiary, he is still not bound to the Agreement because he did not sign it. 24
22 Id. at 4.
23 Id.
24 Id. at 6.
Finally, Plaintiffs assert that the choice of forum and arbitration provisions of the Agreement are unenforceable [*9] against both Plaintiffs because the Agreement is over-broad and unconscionable. 25 The Plaintiffs contend that the Agreement is too broad because there is no evidence that the parties contemplated “Cedars’ common law duty to prevent sexual assaults on John Doe or the manner in which breaches of that duty would be redressed when they entered into the Agreement.” 26 In addition, they argue that the Agreement is unconscionable because “John Doe was in need of specialized care and Cedars purported to be uniquely qualified to render such care,” leaving Jane Doe with little choice but to “sign on the dotted line.” 27
25 Id. at 8-10.
26 Id. at 9.
27 Id. at 10.
IV.
[HN1] In evaluating a Motion to Dismiss under Superior Court Civil Rule 12(b)(6), the Court must assume all well plead facts in the complaint to be true. 28 A complaint will not be dismissed unless the plaintiff would not be entitled to recover under any reasonable set of circumstances susceptible of proof. 29 Stated differently, a complaint may not be dismissed unless it is clearly not viable, which may be determined as a matter of law or fact. 30
28 Ramunno v. Cawley, 705 A.2d 1029, 1034 (Del. 1998).
29 Nix v. Sawyer, 466 A.2d 407, 410 (Del. Super. 1983).
30 Diamond State Tel. Co. v. Univ. of Del., 269 A.2d 52, 58 (Del. 1970).
V.
Plaintiffs’ [*10] Motion and the Defendants’ response implicate the following issues, which the Court will address seriatim: (A) whether the Agreement is binding as to Jane Doe; (B) whether the Agreement is binding as to John Doe; (C) whether the pre-injury release provision renders the entire Agreement unenforceable; and, if not (D) whether the choice of law, choice of forum, and/or arbitration provisions of the Agreement are controlling.
A. Jane Doe Is Bound By The Agreement She Entered Into With Cedars On Behalf Of Her Son
[HN2] Both Delaware and California measure the formation of a contract by an objective test. 31 Specifically, a contract is formed if “a reasonable person would conclude, based on the objective manifestations of assent and the surrounding circumstances, that the parties intended to be bound to their agreement on all essential terms.” 32 At the outset, the Court notes that [HN3] it is counter-intuitive to seek enforcement of an agreement that one alleges to be invalid. Stated differently, a party cannot “simultaneously seek to avoid the contract … and at the same time sue for damages for breach of [that] contract ….” 33 And yet, this is precisely what the Plaintiffs are attempting to do in [*11] this case. 34
31 The Court has considered both Delaware and California law in construing the Agreement given the Agreement’s choice of California law. See Leeds v. First Allied Conn. Corp., 521 A.2d 1095, 1097 (Del. Ch. 1986); Founding Members of Newport Beach Country Club v. Newport Beach Country Club, Inc., 109 Cal. App. 4th 944, 955, 135 Cal. Rptr. 2d 505 (Cal. Ct. App. 2003).
32 Leeds, 521 A.2d at 1101. See also Founding Members, 109 Cal. App. 4th at 955 (“California recognizes the objective theory of contracts, under which [it] is the objective intent, as evidenced by the words of the contract, rather than the subjective intent of one of the parties, that controls interpretation.”).
33 In re Verilink Corp., 405 B.R. 356, 378 (N.D. Ala. 2009).
34 Compl. ¶¶ 21-25.
Moreover, a reasonable person would conclude that Jane Doe objectively manifested her assent to be bound by the terms of the Agreement by paying tuition to Cedars Academy as required by the Agreement and entrusting her son to the school as contemplated by the Agreement. 35 As a person with the capacity to contract, and in the absence of allegations of fraud, duress, or undue influence, Jane Doe is bound to the Agreement she signed with Cedars so that [*12] her son could attend Cedars Academy. 36
35 Compl. ¶¶ 5 and 22.
36 2 Williston on Contracts § 6:44 (4th ed.) (“Because the offeree’s action naturally indicates assent, at least in the absence of an invalidating cause such as fraud, duress, mutual mistake, or unconscionability, where an offeree signs a document it is generally held to be bound by the document’s terms, even if the offeree signs in ignorance of those terms.”). See, e.g., Indus. Am., Inc v. Fulton Indus., Inc., 285 A.2d 412, 415 (Del. 1971) (“Where an offeror requests an act in return for his promise and the act is performed, the act performed becomes the requisite overt manifestation of assent if the act is done intentionally; i.e., if there is a ‘conscious will’ to do it.”); Main Storage & Trucking Inc. v. Benco Contracting and Eng’g Inc., 89 Cal. App. 4th 1042, 1049, 107 Cal. Rptr. 2d 645 (Cal. Ct. App. 2001)( [HN4] “Every contract requires mutual assent or consent, and ordinarily one who signs an instrument which on its face is a contract is deemed to assent to all its terms.”).
B. John Doe Is Bound By The Agreement Entered Into On His Behalf By His Mother
The parties focused much of their energy on whether John Doe should be considered a third party [*13] beneficiary of the Agreement. This focus, however, misses the mark in that it ignores the realities of the relationship between parent and child. As a matter of law, and as a practical matter, John Doe, a minor, could not obtain a private boarding school education from a facility like Cedars Academy without his mother contracting for such services on his behalf. 37 As the guardian of John Doe, Jane Doe was authorized to provide for her minor son’s education in the manner she saw fit. 38
37 6 Del. C. § 2705 ( [HN5] A person does not have the capacity to contract until he or she reaches the age of majority); Cal. Fam. Code Ann. § 6700 (West 1994)(“A minor may make a contract … subject to the power of disaffirmance.”); Cal. Fam. Code Ann. § 6500 (“A minor is an individual who is under 18 years of age.”).
38 Ide v. Brown, 178 N.Y. 26, 70 N.E. 101, 102 ( N.Y.1904) (“As guardian, we assume that [father] had the power to provide for her support and maintenance during [daughter’s] minority.”); Pierce v. Soc’y of the Sisters of the Holy Names of Jesus & Mary, 268 U.S. 510, 534-35, 45 S. Ct. 571, 69 L. Ed. 1070 (1925) (Parents have the liberty “to direct the upbringing and education of children under their control.”); Hohe v. San Diego Unified Sch. Dist., 224 Cal. App. 3d 1559, 1565, 274 Cal. Rptr. 647 (Cal. Ct. App. 1990)(same).
To [*14] conclude that John Doe is not bound by the Agreement’s otherwise enforceable terms, as Plaintiffs contend, simply because he is a minor would be tantamount to concluding that a parent can never contract with a private school (or any other service provider) on behalf and for the benefit of her child. As a practical matter, no service provider would ever agree to a contract with a parent if a child could ignore the provisions of the contract that pertain to him without recourse. 39 Such a result is inconsistent with the law’s concept of the family which “rests on a presumption that parents possess what a child lacks in maturity, experience, and capacity for judgment required for making life’s difficult decisions.” 40 In this case, as a parent, Jane Doe was authorized to enter into the Agreement with Cedars on behalf of her minor son and to bind him to its enforceable terms.
39 For instance, in this case, Cedars reserved the right to terminate John Doe’s enrollment in Cedars Academy if he engaged in “illegal, uncontrollable, or dangerous behavior” or “for any other reason … deem[ed] necessary for the protection of [John Doe], any other student(s) or the integrity of Cedar’s program.” [*15] Agreement, ¶ 9. This provision implicitly imposes upon John Doe certain obligations to behave in an appropriate manner. If this obligation was deemed by the Court to be non-binding upon John Doe simply because he is a minor, then Cedars, in turn, would lose its authority to discharge him or any other student whose behavior justified termination from the program. No private school would ever enroll a student under such circumstances.
40 Parham v. J.R., 442 U.S. 584, 602, 99 S. Ct. 2493, 61 L. Ed. 2d 101 (1979).
C. Even If The Pre-Injury Release Provision Is Invalid, It is Severable and Does Not Affect The Overall Enforceability Of The Agreement
Plaintiffs argue that parents do not possess the authority to bind their children to pre-injury releases. 41 According to Plaintiffs, the pre-injury release is invalid, 42 and, therefore, John Doe should not be bound by the balance of the Agreement’s terms. 43
41 Agreement ¶ 5.
42 Pls.’ Resp. Defs.’ Letter Mem. pg. 7.
43 Pls.’ Resp. Defs.’ Mot. to Dismiss ¶ 8.
It appears that no Delaware court has specifically addressed whether parents can bind their children to a pre-injury release. Further, it appears that there is a split among those jurisdictions that have addressed the issue. 44 This [*16] Court need not weigh in on behalf of Delaware, however, because even if the pre-injury release is invalid, the presence of the provision would not render the entire Agreement unenforceable. 45 [HN6] When “determining whether a contract is divisible … the essential question … is ‘did the parties give a single assent to the whole transaction, or did they assent separately to several things?'” 46 If there is evidence that clearly shows that the parties intended to enter into an integrated contract, then the contract should be read in its entirety. 47 In this regard, Delaware courts recognize that “[t]he parties’ intent to enter into a divisible contract may be expressed in the contract directly, through a severability clause.” 48 The Agreement between the parties in this case contains a clear and unambiguous severability clause. 49 Accordingly, the invalidity of the pre-injury release would not render the remainder of the Agreement unenforceable.
44 Compare Cooper v. Aspen Skiing Co., 48 P.3d 1229 (Colo. 2002)(holding that Colorado’s public policy affords minors significant protections which preclude parents or guardians from releasing a minor’s own prospective claim for negligence); Hawkins ex rel. Hawkins v. Peart, 2001 UT 94, 37 P.3d 1062 (Utah 2001)(holding [*17] that a parent cannot release a child’s causes of action against a third party before or after an injury); with Sharon v. City of Newton, 437 Mass. 99, 769 N.E.2d 738 (Mass. 2002)(holding that releases of liability for ordinary negligence involving private parties are valid as a general proposition in the Commonwealth and, thus, it was not contrary to the purposes of the Tort Claims Act to allow city to use releases as a precondition for student’s participation in voluntary, nonessential activities, such as cheerleading at public school activities); Zivich v. Mentor Soccer Club, Inc., 82 Ohio St. 3d 367, 1998 Ohio 389, 696 N.E.2d 201 (Ohio 1998) (Holding that mother had authority to bind her minor child to exculpatory agreement in favor of volunteers and sponsors of nonprofit soccer organization, where cause of action sounded in negligence; agreement could not be disaffirmed by child on whose behalf it was executed).
45 See McInerney v. Slights, 1988 Del. Ch. LEXIS 47, 1988 WL 34528, *7 (Del. Ch. Apr. 13, 1988)(“… where a contract as negotiated cannot be enforced by reason of a legally-recognized policy, a court should simply [imply] a severability clause in the contract if to enforce such an implied term may be done sensibly.”); Abramson v. Juniper Networks, Inc. 115 Cal. App. 4th 638, 658-59, 9 Cal. Rptr. 3d 422 (Cal. Ct. App. 2004)(“Where [*18] a contract has several distinct objects, of which one at least is lawful, and one at least is unlawful, in whole or in part, the contract is void as to the latter and valid as to the rest.”).
46 Orenstein v. Kahn, 13 Del. Ch. 376, 119 A. 444, 446 (Del. Ch. 1922) (“Although the consideration is apportioned on the face of a contract, if there be a special agreement to take the whole or nothing, or if the evidence clearly shows that such was the purpose of the parties, the contract should be entire.”).
47 Id.
48 15 Williston on Contracts § 45:6 (4th ed.). See also Evans, 872 A.2d at 552 (“Generally, a severability clause is enforceable.”).
49 Agreement ¶ 22 (“In the event that any provision of this agreement, or any operation contemplated hereunder, is found by a court of competent jurisdiction to be inconsistent with or contrary to any law, ordinance, or regulation, the latter shall be deemed to control and the Agreement shall be regarded as modified accordingly and, in any event, the remainder of this agreement shall continue in full force and effect.”).
D. The Choice of Forum Provision is Controlling
Having determined that the pre-injury release provision may be excised, the Court now turns to the balance of [*19] the Agreement to determine if any remaining provisions support the Defendants’ motion. In this regard, the Court’s attention is drawn immediately to provisions of the Agreement which suggest that the parties intended to resolve their disputes in California, not Delaware. Not surprisingly, Defendants interpret these provisions as requiring the Court to dismiss this action so that Plaintiffs’ claims may be brought in California as intended. Plaintiffs, not surprisingly, argue that the Agreement’s arbitration and choice of forum provisions do not apply here. The parties’ differing views of these provisions require the Court to interpret the Agreement and to determine in which forum this controversy belongs.
[HN7] Both Delaware and California courts honor the parol evidence rule. 50 This rule provides that “[w]hen two parties have made a contract and have expressed it in a writing to which they have both assented as to the complete and accurate integration of that contract, evidence . . . of antecedent understandings and negotiations will not be admitted for the purpose of varying or contradicting the writing.” 51 To ensure compliance with the parol evidence rule, the court first must determine [*20] whether the terms of the contract it has been asked to construe clearly state the parties’ agreement. 52 In this regard, the court must remember that a contract is not rendered ambiguous simply because the parties disagree as to the meaning of its terms. 53 “Rather, a contract is ambiguous only when the provisions in controversy are reasonably or fairly susceptible of different interpretations or may have two or more different meanings.” 54 Upon concluding that the contract clearly and unambiguously reflects the parties’ intent, the court’s interpretation of the contract must be confined to the document’s “four corners.” 55 The court will interpret the contract’s terms according to the meaning that would be ascribed to them by a reasonable third party. 56
50 See Rhone-Poulenc Basic Chem. Co. v. American Motorists Ins. Co., 616 A.2d 1192, 1196 (Del. 1992); Wolf v. Walt Disney Pictures & Television, 162 Cal. App. 4th 1107, 1126, 76 Cal. Rptr. 3d 585 (Cal. Ct. App. 2008).
51 26 Corbin on Contracts § 573 (1960).
52 Comrie v. Enterasys Networks, Inc., 837 A.2d 1, 13 (Del. Ch. 2003)(citing In Re. Explorer Pipeline Co., 781 A.2d 705, 713 (Del. Ch. 2001)); Wolf, 162 Cal. App. 4th at 1126 (“[w]hen a contract is reduced [*21] to writing, the intention of the parties is to be ascertained from the writing alone, if possible….”)(citation omitted).
53 See Rhone-Poulenc Basic Chem. Co. v. American Motorists Ins. Co., 616 A.2d 1192, 1196 (Del. 1992)(“A contract is not rendered ambiguous simply because the parties do not agree upon its proper construction.”); Curry v. Moody, 40 Cal. App. 4th 1547, 1552, 48 Cal. Rptr. 2d 627 (Cal. Ct. App. 1995)(“When the parties dispute the meaning of a contract term, the trial court’s first step is to determine whether the term is ambiguous … “).
54 Id. (citation omitted).
55 See O’Brien v. Progressive Northern, Ins. Co., 785 A.2d 281, 288-89 (Del. 2001); Wolf, 162 Cal. App.4th at 1126.
56 Comrie, 837 A.2d at 13 (citations omitted); Wolf, 162 Cal. App. 4th at 1126.
As directed by the parol evidence rule, the Court looks first to the Agreement itself (the text within the “four corners”) to determine if it unambiguously reflects the parties’ intent with respect to choice of forum. To discern the parties’ intent, the Court has utilized certain settled tenets of contract interpretation. 57 The first, and [HN8] perhaps most fundamental, tenet of contract interpretation requires the court to render a “reasonable, [*22] fair and practical” interpretation of the contract’s clear and unambiguous terms. 58 In addition, the court must be mindful that “[a] contract should be read as a whole and every part should be interpreted with reference to the whole, and if possible should be so interpreted as to give effect to its general purpose.” 59 In this regard, the court must interpret the contract “so as to conform to an evident consistent purpose” and “in a manner that makes the contract internally consistent.” 60
57 “An abstract distinction exists between ‘construction’ and ‘interpretation,’ in that ‘construction’ is the drawing of conclusions from elements known from, given in, and indicated by the language used, while ‘interpretation’ is the art of finding the true sense of the language itself ….” 17A Am. Jur. 2d Contracts §328.
58 Id. at §338.
59 Id. at §376.
60 Id.
Here, the Agreement’s choice of law and choice of forum provisions are combined in one paragraph, and together they state, in pertinent part, as follows: “This Agreement, and all matters pertaining hereto, including any matter or dispute arising between the parties out of this Agreement, tort or otherwise, shall be interpreted, governed and enforced [*23] according to the laws of the State of California; and the Parties consent and submit to the exclusive jurisdiction and venue of the California Courts … to enforce this Agreement.” 61 After reading this provision, the Court can mine only two sources of possible ambiguity in relation to the facts sub judice: (1) whether the choice of forum provision applies only to actions “to enforce the Agreement;” and, if not (2) whether Plaintiffs’ claims, including their tort claims, “aris[e] out of the Agreement” such that they implicate the choice of law and choice of forum provisions. As discussed below, neither of these phrases render the Agreement ambiguous.
61 Agreement ¶ 21.
As the Court considers whether Plaintiffs’ claims implicate the Agreement’s choice of forum provision, the Court takes notice of the placement of the semicolon to separate the choice of law and choice of forum provisions. At first glance, the semicolon might suggest an intent to separate the two provisions such that one will not modify the other. And, if the provisions are separated, one might read the choice of forum provision as applying only to actions “to enforce the Agreement.” But this reading would run counter to [*24] the theme of the entire Agreement, which is designed to ground all aspects of the parties’ relationship in California. For instance, the Agreement provides that payments, notices, and correspondence between Jane Doe and Cedars are to be mailed to a California location; 62 disputes between the parties are to be resolved by arbitration that must occur in California; and California law is to apply to all disputes between the parties, whether based in tort or contract. 63 Given the parties’ clear intent to base their relationship in California, the Court will not read the placement of a semicolon as an intent to limit the scope of the choice of forum provision. 64
62 Id. at ¶ 17.
63 Id. at ¶ 21.
64 See Reliance-Grant Elevator Equipment Corp. v. Reliance Ball-Bearing Door Hanger Co., 205 A.D. 320, 199 N.Y.S. 476, 478 (N.Y. App. Div. 1923) (“If for the comma we substitute a period, and make the phrase an independent sentence, all ambiguity will disappear, and the cancellation proviso will clearly refer to the duration of the agreement, and not to the making of extensions.”). See also 11 Williston on Contracts § 32:9 (4th ed.) (“Attention is often paid to grammar and punctuation in determining the proper interpretation [*25] of a contract, but a court will disregard both grammatical constructs and the punctuation used in the written agreement where the context of the contract shows that grammatical or punctuation errors have occurred.”); 17A Am. Jur. 2d Contracts § 365 ( [HN9] “while a court, in construing a contract, will give due force to the grammatical arrangement of the clauses, it will disregard the grammatical construction if it is at variance with the intent of the parties as indicated by the contract as a whole.”).
The semicolon issue aside, the choice of law/choice of forum paragraph, according to its terms, applies to all actions that “aris[e] out of the Agreement.” The question, then, is whether Plaintiffs’ tort and contract claims may properly be said to “aris[e] out of the Agreement.” [HN10] “Where there is a contractual relationship between the parties, a cause of action in tort may sometimes arise out of the negligent manner in which the contractual duty is performed, or out of a failure to perform such duty.” 65 The Agreement mandates that “[o]n the arrival date, [Jane Doe] shall transfer, by a Power of Attorney … temporary custody of the Student [John Doe] to Cedars ….” 66 From the moment Jane Doe [*26] dropped her son off at Cedars Academy, therefore, the school was entrusted with “duties correspondent to the role of a caregiver.” 67 All of Plaintiffs’ claims, based as they are on an alleged failure to protect John Doe while he resided in a Cedars Academy dormitory, directly involve Cedars’ contractual undertaking to care for John Doe as “temporary custod[ian].” As such, the Court is satisfied that the claims “aris[e] out of the Agreement.”
65 Eads v. Marks, 39 Cal. 2d 807, 810-11, 249 P.2d 257 (Cal.1952). See also N. Am. Chem. Co. v. Superior Court, 59 Cal. App. 4th 764, 775, 69 Cal. Rptr. 2d 466(Cal. Ct. App. 1997); Southgate Recreation & Park Dist. v. California Assn. for Park & Recreation Ins., 106 Cal. App. 4th 293, 301-02, 130 Cal. Rptr. 2d 728 (Cal. Ct. App. 2003).
66 Agreement ¶ 3.
67 People v. Toney, 76 Cal. App. 4th 618, 621-22, 90 Cal. Rptr. 2d 578 (Cal. Ct. App. 1999)(citing People v. Cochran, 62 Cal.App. 4th 826, 832, 73 Cal. Rptr. 2d 257 (Cal. Ct. App. 1998))(” The terms ‘care or custody’ do not imply a familial relationship but only a willingness to assume duties correspondent to the role of a caregiver.”).
After reviewing all of the provisions within the four corners of the Agreement, the Court concludes that the parties intended to consent to the exclusive jurisdiction [*27] of California courts or arbitration panels to litigate their claims. [HN11] When “there is a forum selection clause in a contract, even when the venue where the suit is filed is proper, the court should decline to proceed when the parties freely agreed that litigation should be conducted in another forum.” 68 Unless the forum selection clause “is shown by the resisting party to be unreasonable under the circumstances,” such clauses are prima facie valid. 69 A choice of forum provision will be deemed “unreasonable” only when its enforcement would seriously impair the plaintiff’s ability to pursue its cause of action.” 70 Mere inconvenience or additional expense is not sufficient evidence of unreasonableness. 71
68 Eisenmann Corp. v. Gen. Motors Corp., 2000 Del. Super. LEXIS 25, 2000 WL 140781, *7 (Del. Super. Jan. 28, 2000) (citing Elia Corp. v. Paul N. Howard Co., 391 A.2d 214, 216 (Del. Super. 1978)).
69 Id. (citing M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 10, 92 S. Ct. 1907, 32 L. Ed. 2d 513 (1972)). Defendants have argued that the forum selection provision should be enforced if California has a “material connection” to the controversy. This inquiry is implicated by a choice of law analysis, but not by a choice of forum analysis. See Weil v. Morgan Stanley DW, Inc., 877 A.2d 1024 (Del. Ch. 2005).
70 Id.
71 Elia Corp., 391 A.2d at 216.
Other [*28] than arguing that the Agreement is invalid in its entirety because it is unconscionable, Plaintiffs do not provide any support for their contention that the Court should ignore the forum selection clause. 72 They have not, for instance, pointed to any circumstance that would suggest that litigating their claims in California “would seriously impair [their] ability to pursue [their] cause of action.” 73 Having determined that the Agreement is valid and enforceable as to both Jane Doe and John Doe, the Court is left with no basis in fact or law to suggest that the forum selection clause seriously impairs the Plaintiffs’ ability to pursue their cause of action. 74 Accordingly, given the well settled law [HN12] in Delaware that choice of forum provisions are enforceable absent a showing of unreasonableness, the Court must enforce the provision here and decline to exercise jurisdiction in this matter.
72 Beyond the pre-injury release provision, Plaintiffs have pointed to nothing in the Agreement to support an unconscionability argument, and the Court has discerned no basis for the argument on its own.
73 Eisenmann Corp., 2000 Del. Super. LEXIS 25, 2000 WL 140781 at 7 (citing M/S Bremen, 407 U.S. 1 at 10, 92 S. Ct. 1907, 32 L. Ed. 2d 513).
74 Here again, Plaintiffs [*29] have not argued that their ability to pursue their claims in California would be “seriously impaired,” e.g. by virtue of a statute of limitations that would bar their claims there or otherwise, and the Court can fathom no reason why the identical claims sub judice could not be raised in California.
Since the Court has determined that it should decline to exercise its jurisdiction over this dispute for the reasons set forth above, the Court need not decide the validity of the mandatory arbitration provision, nor whether Aspen should be dismissed based upon a lack of personal jurisdiction. These questions will be left to the California forum (be it a court or arbitration panel) that ultimately decides this case.
VI.
Based on the foregoing, Defendants’ Motion to Dismiss is hereby GRANTED.
IT IS SO ORDERED.
/s/ Joseph R. Slights, III
Joseph R. Slights, III, Judge
Murawski v. Camp Nageela, 4 Misc. 3d 1025A; 798 N.Y.S.2d 346; 2004 N.Y. Misc. LEXIS 1542; 2004 NY Slip Op 51045U
Posted: March 26, 2012 Filed under: Legal Case, Summer Camp | Tags: Camp, Long Island, New York, New York City, Recreation, Summary judgment, Summer Camp Leave a commentMurawski v. Camp Nageela, 4 Misc. 3d 1025A; 798 N.Y.S.2d 346; 2004 N.Y. Misc. LEXIS 1542; 2004 NY Slip Op 51045U
[***1] Nina Murawski, individually and as parent and Natural Guardian of Adam Murawski, an Infant, Plaintiffs, v. Camp Nageela, Camp Shevtai Yisroel, Jewish Education Program (JEP) of Long Island, rabbi shenker, rabbi glustein, jeffrey y. Arshravan and Eric Arshravan, an infant, Defendants.
01-2959
SUPREME COURT OF NEW YORK, SUFFOLK COUNTY
4 Misc. 3d 1025A; 798 N.Y.S.2d 346; 2004 N.Y. Misc. LEXIS 1542; 2004 NY Slip Op 51045U
June 10, 2004, Decided
NOTICE: [**1] THIS OPINION IS UNCORRECTED AND WILL NOT BE PUBLISHED IN THE PRINTED OFFICIAL REPORTS.
DISPOSITION: Defendants motion for summary judgment granted; complaint dismissed.
CORE TERMS: infant, supervision, summary judgment, camper, bunkhouse, altercation, personnel, notice, finger, nurse, summer camp, anticipated, fellow, failure to provide, medical care, medical report, counselor, residual, dropped, sworn, mitt
HEADNOTES
[*1025A] Negligence–Duty.
COUNSEL: MALLILO & GROSSMAN, ESQS., Attorneys for Plaintiffs, Flushing, NY.
MOLOD, SPITZ & DeSANTIS, PC, Attorneys for Defendants Camp Nageela, JEP, Rabbi Shenker and Rabbi Glustein, New York, NY.
JUDGES: Denise F. Molia, J.
OPINION BY: Denise F. Molia
OPINION
Denise F. Molia, J.
ORDERED that this motion by defendants Camp Nageela, Jewish Education Program of Long Island, Rabbi Shenker and Rabbi Glustein for summary judgment dismissing the complaint against them is granted.
This is an action to recover damages for personal injuries allegedly sustained by the infant plaintiff, Adam Murawski, then ten years old, when on August 11, 2000, he was assaulted by a fellow camper, defendant Eric Arshravan, in the bunkhouse they shared at defendant Camp Nageela, [**2] a sleep away summer camp operated by defendant Jewish Education Program of Long Island [JEP]. Defendant Rabbi Shenker is the director of JEP and defendant Rabbi Glustein is another employee of JEP. A derivative cause of action is asserted on behalf of infant plaintiff’s mother, plaintiff Nina Murawski.
Plaintiffs seek recovery from the camp defendants on two grounds – improper supervision and a failure to provide proper medical care after the assault. The camp defendants now move for summary judgment dismissing the complaint on the basis that the infant plaintiff’s injuries were the result of a spontaneous altercation that could not have been anticipated by camp officials. Defendants also contend that there was no adverse affect upon the infant plaintiff as a result of any delay in obtaining medical treatment for him. In support, defendants submit, inter alia, copies of the pleadings, a copy of the transcript of the testimony given by the infant plaintiff at his examination before trial, the personal affidavit of defendant Rabbi Shenker, and the sworn medical report of defendants’ examining physician, Dr. Leon Sultan.
At his examination before trial the infant plaintiff Adam [**3] Murawski testified to the effect that he shared a bunkhouse with four or five other boys at the camp, including the infant defendant Eric Arshravan, and a counselor. Adam also testified that Eric was somewhat smaller than him and that the two generally did not “get along well”. Adam stated that he and Eric had once had a previous argument during a kick ball game but that the disagreement did not go beyond Eric’s yelling at him. Adam testified that he that he could not remember whether he had complained about Eric to any of the camp counselors during the two week period prior to the subject incident and that the boys had not engaged in any physical altercations during that time period. Adam further testified that the incident occurred when the two boys were alone in the bunkhouse, that he had gone into the bunkhouse in order to get his baseball mitt and that Eric came in after him. While Adam was looking for his mitt he dropped something and then picked up something of Eric’s because he thought the item he dropped might be underneath or near it. Eric then told Adam to “put it down” and he did so. Adam further testified that the two boys had agreed to share a table and that he thought [**4] Eric became angry because he believed that Adam [***2] had moved one of Eric’s belongings. Shortly thereafter, Eric hit Adam with a hockey stick.
By his personal affidavit, defendant Rabbi Shenker states that at no time prior to the subject incident were the camp personnel advised that Adam had complained of any problems with the infant defendant and that the camp had no written reports of any incidents involving the boys from Adam’s bunkhouse other than the nurse’s report of the subject incident. As for the plaintiffs’ claim that the camp failed to provide proper medical attention for the infant plaintiff, Rabbi Shenker states that Adam was seen by the camp nurse after the incident and she determined that the Adam’s finger should be placed in a splint and that he should be followed, that the camp nurse twice followed up with Adam the next day and was told by Adam that his finger was feeling better. Rabbi Shenker further states that plaintiff Nina Murawski came to the camp two days after the incident to visit Adam and she took him off the camp grounds for several hours. When she brought Adam back to camp, she asked the camp personnel to arrange for an x-ray of Adam’s finger which was later [**5] taken at the emergency room at the local hospital.
The standard of care for persons having children entrusted to their care in a summer camp setting is that of a reasonably prudent parent. In such a setting, constant supervision is neither feasible nor desirable because one of the benefits of such an institution is to inculcate self-reliance in the campers which an overly protective supervision would destroy (Gustin v Association of Camps Farthest Out, Inc., 267 A.D.2d 1001, 700 N.Y.S.2d 327 [1999]). Camps, like schools are not insurers of safety for they cannot reasonably be expected to continuously supervise and control all movements and activities of the campers (Lesser v Camp Wildwood, 282 F. Supp. 2d 139 [2003]). In order to establish a breach of the duty to provide adequate supervision a plaintiff must show that the camp authorities had sufficient specific knowledge or notice of the dangerous conduct which caused the injury; that is, that the third-party acts could have reasonably been anticipated (see, Mirand v City of New York, 84 N.Y.2d 44, 637 N.E.2d 263, 614 N.Y.S.2d 372 [1994].
Here, viewing the record in a light [**6] most favorable to the plaintiffs (see, J. Rosen Furs, Inc. v Sigma Plumbing & Heating Corp., 249 A.D.2d 276, 670 N.Y.S.2d 596 [1998]), there is no factual basis to conclude either that the camp’s agents had knowledge constituting notice of a particular danger to the infant plaintiff prior to the incident or that the incident that caused the infant plaintiff’s injuries was anything other than a sudden, unanticipated independent act by a fellow camper (see, Mirand v City of New York, supra; Foster v New Berlin Central School Dist., 246 A.D.2d 880, 667 N.Y.S.2d 994 [1998]; Schlecker v Connetquot Central School Dist. of Islip, supra). There is also no evidence that the camp’s agents had any actual or constructive notice that the infant defendant was engaged in a prohibited activity or that they had a reasonable opportunity to prevent its continuance prior to the subject altercation (see, Mirand v City of New York, supra; Totan v Bd. of Educ., 133 A.D.2d 366, 519 N.Y.S.2d 374 [1978] app den 70 N.Y.2d 614, 524 N.Y.S.2d 432, 519 N.E.2d 343). The infant plaintiff, [**7] by his own admission, concedes that he notified none of the camp’s personnel concerning his fears of an impeding confrontation with the infant [***3] defendant. Therefore, even assuming, arguendo, that an issue of fact exists regarding the adequacy of the supervision, the need for additional supervision of the infant defendant prior to the incident could not have been apprehended (see, Nocilla v Middle Country School District, 302 A.D.2d 573, 757 N.Y.S.2d 300 [2003]; Foster v New Berlin Central School Dist., supra; McGregor v City of New York, 197 A.D.2d 609, 602 N.Y.S.2d 669 [1993] app den 84 N.Y.2d 802, 617 N.Y.S.2d 136, 641 N.E.2d 157; Schlecker v Connetquot Central School Dist. of Islip, supra).
In opposition, plaintiffs rely upon counsel’s affidavit and the purported affidavit of another camper. Counsel’s affidavit is without probative value as counsel professes no first hand knowledge of the fact and circumstances relating to plaintiffs’ claims (see, Siagkris v K & E Mechanical, Inc., 248 A.D.2d 458, 669 N.Y.S.2d 375 [1998]). The affidavit by the non party infant witness [**8] is also inadmissible as it has not been signed by him. 1 Plaintiff has thus failed to meet the burden of producing proof in admissible form sufficient to require a trial of material questions of fact (Papadopoulos Gardner’s Village, 198 A.D.2d 216, 604 N.Y.S.2d 570 [1984]). The moving defendants are therefore granted summary judgment dismissing plaintiffs’ improper supervision claims.
1 Nor has the Court has considered the affidavit of another non party infant witness attached to the defendants’ Reply papers as that affidavit is not signed by the affiant.
The moving defendants are also entitled to summary judgment with respect to plaintiffs’ remaining claim the gravamen of which is that defendants’ failure to provide the infant plaintiff with prompt medical care for his injuries has resulted in residual injuries. Dr. Leon Sultan, by his sworn medical report, affirms that he is a board-certified orthopedic surgeon who examined Adam Murawski for the defendants. Dr. Sultan opines [**9] that Adam’s left hand is unremarkable in that he is orthopedically stable and neurologically intact, and that the 5th metacarpal fracture is healed without any residual functional impairment. Plaintiffs having come forward with no medical proof to sustain their enhanced injury claim, defendants are entitled to summary judgment.
Accordingly, the motion by defendants Camp Nageela, Jewish Education Program of Long Island, Rabbi Shenker and Rabbi Glustein for summary judgment is granted and the complaint is dismissed as to these defendants. The Court’s computerized records reflect that the action was previously discontinued as to defendants Arshravan by stipulation filed with the County Clerk on August 28, 2001. In addition, plaintiffs’ failure to move for a default within one year after service of the complaint warrants a dismissal of the complaint as against the sole remaining defendant, Camp Shevtai Yisroel (CPLR 3215[c]). The complaint is therefore dismissed in its entirety.
[***4] X FINAL DISPOSITION NON-FINAL DISPOSITION
Information, Education and knowledge prevent a mother from suing a camp and the Girl Scouts
Posted: February 20, 2012 Filed under: Minors, Youth, Children, Mississippi, Summer Camp, Youth Camps | Tags: Bedroom, Bunk bed, Cabin, Camp, Child, Girl Scouts, Girl Scouts of America, Recreation, Summer Camp Leave a commentBuck, v. Camp Wilkes, Inc. 906 So. 2d 778; 2004 Miss. App. LEXIS 1141
Besides top bunk of a bunk bed is just not a dangerous instrumentality.
The mother of a thirteen-year old girl sued the Girl Scouts of Gulf Pine Council, Inc., the troop leader of her daughter’s unit and the camp when the girl fell off the top bunk of a bunk bed injuring her. The basis of the suit was the defendant’s actions caused or contributed to the thirteen-year olds fall. After the defendants were dismissed on summary judgment by the trial court the mother appealed claiming the lower court failed to determine the following:
(1) in failing to follow existing standards in granting the defendants’ motions for summary judgment, (2) in finding no merit to Buck’s argument that a causal relationship existed between Boozer’s temporary absence at the time of the accident and Jamie’s falling from the bed, and in applying the wrong standard when considering Boozer and the Girl Scouts’s lack of supervision, and (3) in ruling as a matter of law that a bunk bed is not a dangerous instrumentality and that Appellees‘ use of bunk beds did not amount to a failure on their part to use reasonable care in providing Jamie a reasonably safe place to sleep.
The entire case revolved around what did the injured girl’s mother know?
The mother took her daughter to camp and helped set up her bed the first night. The second night the group moved to another cabin because the first cabin did not have a working refrigerator. The mother was not there for the move or the remaining nights. The girls decided to sleep on the top bunks, even though lower bunks were available.
The second night after the move the third night in total, the thirteen-year old rolled off the bunk and fell suffering injuries.
So?
The first argument was dismissed because there was no legal (causal) relationship between the defendant leader leaving for an errand and the girl falling out of the bunk. No supervision when the girl fell would have prevented her from falling.
The plaintiff then argued, as part of the first appeal argument that the girls should not have been allowed to sleep on the top bunk. However, the court found the plaintiff presented no evidence that bunk beds or sleeping on the top bunk by thirteen-year old girls were dangerous.
The court then looked at whether bunk beds were a dangerous instrumentality. This means that in and of themselves, bunk beds are dangerous. Guns are probably the best example of a dangerous instrumentality. However, the court found that there was no evidence the beds where dangerous on their face. The mother during her deposition testified that she knew her daughter might be sleeping on a bunk bed, expressed no concerns about that fact and did not inform anyone that she did not want her daughter sleeping on the bed.
The court referred to a New York decision that held that an innkeeper is not responsible for the beds, when the parent is the one who chooses whether or not their child can sleep in it.
Finally, the court looked at the failure to warn issue. A land owner owes a duty of care to someone on the land based on the relationship between the land owner and the person. Here, the thirteen-year old was an invitee. A landowner’s duty to an invitee is “exercising reasonable care to keep its premise’s safe, or to warn Jamie [the injured girl] of any hidden or concealed perils of which it knew, or should have known, in the exercise of reasonable care.”
Here again the court had no evidence in front of it showing that bunk beds were dangerous so that the landowner, the camp, needed to inform the mother of the dangers.
So Now What?
What stands out in this case is the fact the mother, and probably the daughter, knew what the daughter was going to do and did not stop those acts. If a parent and a child know and understand what the risk of the activity is, then it is difficult for them to prove that the risks were dangerous. If the risks were dangerous, then why didn’t the mother inform the daughter or the troop leader that she did not want her daughter participating in the particular risks?
Here, the proof came out in a deposition. However, I believe that is relying on luck to hope that discovery will save your case. Better to point out all the risks of the activity to the parents and children and be able to prove that you did point them out.
There are two ways of doing that. The first is to put the risks in a release and have the parents sign the release. This works for single day activities were the risks can be easily identified…..to some extent.
Better to put everything you can on your website. A movie of the cabins showing bunk beds would have also proven the points to the parents and the court. If each cabin is different have the parents look at the cabins that their child is staying in. Always point out that cabins are different and some have other features and numerate the risks.
Do the same with the dining hall, health club, paths and all buildings and activity areas. Give the parents every opportunity to experience the camp without leaving their computer. No matter what you show it will help sell the camp and keep parents informed of the risks.
Proving the parent watched the videos is easy. On all of your literature tell the parents to go to the website and look around. On the release, have the parents agree that they did go to the website and look around.
If you think, the videos are difficult to do, then don’t. Turn it into a project and have the kids make them!
What do you think? Leave a comment.
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Bernstein v Wysoki et al., 77 A.D.3d 241; 907 N.Y.S.2d 49; 2010 N.Y. App. Div. LEXIS 6579; 2010 NY Slip Op 6475; 244 N.Y.L.J. 43
Posted: February 13, 2012 Filed under: Legal Case, Minors, Youth, Children, New York, Summer Camp, Youth Camps | Tags: Camp, Contract, Forum selection clause, LexisNexis, Medical Malpractice, Motion (legal), New York, New York Supreme Court, New York Supreme Court Appellate Division, Summer Camp, Supreme Court 1 CommentBernstein v Wysoki et al., 77 A.D.3d 241; 907 N.Y.S.2d 49; 2010 N.Y. App. Div. LEXIS 6579; 2010 NY Slip Op 6475; 244 N.Y.L.J. 43
Jordan Bernstein, an Infant, by His Mother and Natural Guardian, Malka Bernstein, et al., Respondents, v Randee Wysoki et al., Appellants, et al., Defendants. (Index No. 20686/07)
2008-06606, 2008-09740
SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT
77 A.D.3d 241; 907 N.Y.S.2d 49; 2010 N.Y. App. Div. LEXIS 6579; 2010 NY Slip Op 6475; 244 N.Y.L.J. 43
August 24, 2010, Decided
PRIOR HISTORY: Appeals from orders of the Supreme Court, Nassau County (Thomas P. Phelan, J.), entered June 13, 2008 and September 30, 2008. The order entered June 13, 2008, insofar as appealed from, denied that branch of the cross motion of defendants Randee Wysoki, Dina Farrell, Michael Farrell and Gregory Scagnelli to dismiss the complaint insofar as asserted against them pursuant to CPLR 3211 (a) (1) and 501 based on a forum selection clause. The order entered September 30, 2008, insofar as appealed from, upon reargument, adhered to the original determination and denied that branch of the cross motion of defendant Julie Higgins which was to dismiss the complaint insofar as asserted against her pursuant to CPLR 3211 (a) (1) and 501 based on the forum selection clause.
Bernstein v. Wysoki, 2008 N.Y. Misc. LEXIS 10774 (N.Y. Sup. Ct., Sept. 26, 2008)
Bernstein v. Wysoki, 2008 N.Y. Misc. LEXIS 9483 (N.Y. Sup. Ct., June 10, 2008)
COUNSEL: [***1] Martin Clearwater & Bell, LLP, New York City (William P. Brady, Timothy M. Smith and Stewart G. Milch of counsel), for appellants.
Napoli Bern Ripka, LLP, New York City (Denise A. Rubin of counsel), for respondents.
JUDGES: REINALDO E. RIVERA, J.P., HOWARD MILLER, THOMAS A. DICKERSON, SHERI S. ROMAN, JJ. RIVERA, J.P., MILLER and ROMAN, JJ., concur.
OPINION BY: DICKERSON, J.
OPINION
[*243] [***2] [**51] Dickerson, J.
Factual Background and the Camp Contract
On or about June 25, 2007 the plaintiff Malka Bernstein (hereinafter Malka) entered into a contract (hereinafter the Camp Contract) with the defendant Camp Island Lake (hereinafter the Camp) for her then 13-year-old son, the plaintiff Jordan Bernstein (hereinafter Jordan), to attend the Camp during summer 2007. The Camp is located in Starrucca, Wayne County, Pennsylvania, where it also maintains a summer office. The Camp maintains a winter office in New York City.
The second paragraph of the Camp Contract provided:
“If it is necessary to obtain off-camp medical/surgical/dental services for the camper, such expenses shall be paid by the parent except the portion supplied by the camp medical staff. Authority is granted without limitation to the camp/assigns in all medical matters to hospitalize/treat/order injections/anesthesia/surgery for the camper. The parent is responsible for all pre-existing medical conditions, out of camp medical/surgical/hospital/pharmaceutical/allergy expenses and for providing [*244] adequate quantities [***3] of necessary medications and allergy serums to camp in pharmacy containers with doctor’s instructions. The parent(s) or legal guardian(s) hereby states that the camper is in good, normal health and has no abnormal physical, emotional, or mental handicaps” (emphasis added).
The Camp Contract also contained a forum selection clause. The sixth paragraph of the Camp Contract provided:
“Enclosed with this agreement is $ 1000 per child enrolled in program. Payments on account of tuition (less $ 100 registration fee) will be refunded if requested before January 1st. Cancellations of sessions will not be accepted after January 1st. Thereafter, no refunds will be made. All refunds will be made on or about May 1st. Installments on the balance will be due on January 1st, March 1st, & May 1st. A returned check fee of $ 25 will be applied to all returned checks. These rates are subject to change without notice. Any outstanding balance precludes admission to camp. The [***4] venue of any dispute that may arise out of this agreement or otherwise between the parties to which the camp or its agents is a party shall be either the local District Justice Court or the Court of Common Pleas, Wayne County, Pennsylvania” (emphasis added).
The eighth and final paragraph of the Camp Contract provided, in part, “[t]he parent represents that he/she has full authority [**52] to enroll the camper/to authorize participation in activities/medical care and to contract the aforesaid.”
On or about August 8, 2007, while enrolled at the Camp, Jordan developed a pain in his lower abdomen. The defendants Randee Wysoki and Jill Tschinkel, who were the doctor and registered nurse, respectively, working at the Camp at the time, allegedly cared for Jordan at the Camp before taking him to the defendant Wilson Memorial Regional Medical Center (hereinafter Wilson Memorial), in Johnson City, Broome County, New York, in the vicinity of the Camp. While at Wilson Memorial from August 8, 2007 through August 10, 2007, Jordan allegedly received care and treatment from the defendants Dina Farrell, M.D., Michael Farrell, M.D., Gregory Scagnelli, M.D., Julie Higgins, R.P.A., Patricia Grant, R.N., and [***5] William Kazalski, R.N. Allegedly due to the failure of the defendants to timely recognize and properly care for and treat Jordan’s condition, he sustained various injuries.
[*245] The Instant Action
In November 2007, Jordan and Malka, both as Jordan’s guardian and in her individual capacity, commenced the instant action, inter alia, to recover damages for medical malpractice in the Supreme Court, Nassau County, against, among others, the Camp, Wilson Memorial, “Randy ‘Doe,’ M.D.,” ” ‘Jane Doe’ R.N.,” Dina Farrell, and Michael Farrell. Thereafter, the plaintiffs amended their complaint to substitute Wysoki for the defendant Randy “Doe,” and to add Scagnelli as a defendant.
After joinder of issue, the Camp moved, inter alia, to dismiss the complaint insofar as asserted against it pursuant to CPLR 3211 (a) (1) and 501 based on the forum selection clause in the Camp Contract.
The plaintiffs moved for leave to serve an amended summons and complaint to add Higgins and Jill Tschinkel, R.N., as defendants.
The defendants Grant, Kazalski, and Wilson Memorial jointly cross-moved to change the venue of the action from Nassau County to Broome County pursuant to CPLR 510 and 511 (a) on the grounds that the defendants [***6] Grant, Kazalski, Dina Farrell, Michael Farrell, Scagnelli, and Higgins worked and/or resided in, or within approximately 10 minutes of, Broome County, and also because Wilson Memorial was located in Broome County.
The defendants Wysoki, Dina Farrell, Michael Farrell, and Scagnelli (hereinafter collectively the doctor defendants) jointly cross-moved, inter alia, to dismiss the complaint insofar as asserted against them pursuant to CPLR 3211 (a) (1) and 501 based on the forum selection clause in the Camp Contract. The doctor defendants observed that, pursuant to the last paragraph of the Camp Contract, Malka represented that she had the authority to bind Jordan to the Camp Contract. The doctor defendants further pointed out that the Camp Contract “outlined the terms and conditions of [Jordan’s] attendance at the Camp, including any necessary medical care and treatment or care and treatment decisions for [Jordan].” In that regard, according to the doctor defendants, “as all the parties to the instant action either provided care and treatment to [Jordan] at the Camp or at [Wilson Memorial] based on the Camp’s decision as to what care and treatment [Jordan] needed to receive, any litigation [***7] between the parties in this matter is subject to the terms and conditions of the [Camp Contract].”
[*246] Specifically, the doctor defendants argued that Wysoki was covered by the Camp Contract because she “was the physician working at the Camp who sent [Jordan] to [Wilson Memorial]” and thus “is part of this lawsuit through her work at [**53] the Camp.” The doctor defendants further argued that Dina Farrell, Michael Farrell, and Scagnelli were covered by the Camp Contract because they “treated [Jordan] at [Wilson Memorial] pursuant to the Camp’s decision as ‘in loco parentis’ and with the authority granted to the Camp . . . to have [Jordan] treated at a hospital” and thus “became involved in the care and treatment of [Jordan] based on the decision made of the Camp to take [Jordan] to [Wilson Memorial].”
The doctor defendants also argued that the Camp Contract contained a prima facie valid forum selection clause that should be enforced “absent a strong showing that it should be set aside.” The doctor defendants further argued that the forum selection clause, which by its terms applied to “any dispute that may arise out of this agreement or otherwise between the parties to which the camp or its agents [***8] is a party,” applied to the instant action, since the plaintiffs’ tort claims depended on the existence of the Camp Contract. In that regard, the doctor defendants noted that “there would be no [tort claims] had [Jordan] not been a camper at the Camp during the Summer of 2007,” and that Jordan “would not have been a camper at the Camp without the terms and conditions of the [Camp Contract] being accepted and agreed to by [Malka].” Finally, the doctor defendants “noted that the Courts have held that [HN1] non-parties to an agreement containing a forum selection clause may be entitled to enforce a forum selection clause where the relationship to the signatory is sufficiently close or where the liability of a corporation and an officer is based on the same alleged acts” (citations omitted).
In an order entered June 13, 2008, the Supreme Court, inter alia, denied that branch of the Camp’s motion which was to dismiss the complaint insofar as asserted against it based on the forum selection clause, denied that branch of the doctor defendants’ cross motion which was to dismiss the complaint insofar as asserted against them based on the forum selection clause, and granted the plaintiffs’ motion for [***9] leave to serve an amended summons and complaint (2008 N.Y. Misc. LEXIS, 9483, 2008 NY Slip Op 31711[U]).
The doctor defendants appeal, as limited by their brief, from so much of the foregoing order as denied that branch of their cross motion which was to dismiss the complaint based on the forum selection clause.
[*247] The Camp moved for leave to reargue that branch of its motion which was to dismiss the complaint insofar as asserted against it based on the forum selection clause. The Camp argued that the Supreme Court “blurred the distinctions between [a parent’s] legal ability to bind an infant plaintiff to the terms of a forum selection clause as opposed to a release of liability,” and that, “contrary to a release of liability, the law permits a parent of a minor child who signs a contract with a forum selection clause to bind the minor child to the terms and agreements set forth by the forum selection clause.”
The doctor defendants moved, inter alia, for leave to reargue that branch of their cross motion which was to dismiss the complaint insofar as asserted against them based on the forum selection clause. The doctor defendants argued that the Supreme Court erred in finding that Malka could not bind Jordan to the terms of the Camp Contract, [***10] including the forum selection clause, stating, “[t]he Courts have consistently held that non-signatory infants, who are the subject of and obtain benefit from an agreement signed by the parent, such as a camp enrollment contract, are considered to be third-party beneficiaries for the purpose of enforcing the terms of the contract.” Therefore, according to the doctor defendants, because Jordan “was a [**54] third-party beneficiary of the [Camp Contract] and as the forum selection clause in the [Camp Contract] is valid, the forum selection clause must be found to be applicable to [Jordan’s] claims as well as [Malka’s claims].”
The doctor defendants further argued that the Supreme Court erred in finding “that there was no factual predicate for the foreseeable enforcement [of the forum selection clause in the Camp Contract] by the non-signatory [doctor defendants].” Specifically, noting that the Camp Contract granted authority ” ‘without limitation to the camp/assigns in all medical matters to hospitalize/treat/order injections/anesthesia/surgery for the camper,’ ” the doctor defendants argued that the Camp “contract itself contemplated and provided the factual predicate for the medical treatment [***11] at issue.”
The doctor defendants argued that they “are exactly the ‘assigns’ that were contemplated by the [Camp Contract], as the same sentence in the contract states that the assigns may ‘hospitalize/treat’ [Jordan] and/or ‘order injections/anesthesia/surgery’ for [Jordan].” Thus, according to the doctor defendants, “the [Camp Contract] is the only mechanism by which [they as non-signatories] were able to ‘hospitalize/treat’ [Jordan] [*248] and, thus, the [Camp Contract] is the only mechanism by which there are claims for the non-signatory hospitalization and treatment at issue.”
The doctor defendants further argued that “there was a sufficiently ‘close relationship’ between the signatories to the [Camp Contract] and the non-signatory [doctor] defendants, to reasonably foresee that [the doctor defendants] or noted ‘assigns’ in the contract would seek to enforce the terms of the contract” (emphasis omitted).
Finally, regarding Wysoki in particular, the doctor defendants argued that the Supreme Court erred in finding “that the same acts are not alleged with regard to the claimed liability of the Camp and Dr. Wysoki.”
At some point in time, the plaintiffs served a supplemental summons and a second [***12] amended summons and complaint, inter alia, adding Higgins as a defendant. Higgins moved, inter alia, to dismiss the complaint insofar as asserted against her based on the forum selection clause.
In an order entered September 30, 2008, the Supreme Court, inter alia, granted leave to reargue to both the Camp and the doctor defendants, and, upon reargument, adhered to its original determination denying the respective branches of the Camp’s motion and the doctor defendants’ cross motion which were to dismiss the complaint insofar as asserted against them based on the forum selection clause (2008 N.Y. Misc. LEXIS,10774, 2008 NY Slip Op 33610[U]). The Supreme Court also denied that branch of Higgins’ motion which was to dismiss the complaint insofar as asserted against her based on the forum selection clause.
The doctor defendants appeal from so much of the second order as, upon reargument, adhered to the original determination denying that branch of their cross motion which was to dismiss the complaint based on the forum selection clause, and Higgins jointly appeals from so much of the same order as denied that branch of her motion which was to dismiss the complaint insofar as asserted against her based on the forum selection clause.
Discussion
[HN2] ” ‘A [***13] contractual forum selection clause is prima facie valid and enforceable unless it is shown by the challenging party to be unreasonable, unjust, in contravention of public policy, invalid due to fraud or overreaching, or it is shown that a trial in the [*249] selected forum would be so gravely difficult that the challenging party would, [**55] for all practical purposes, be deprived of its day in court’ ” (Stravalle v Land Cargo, Inc., 39 AD3d 735, 736, 835 NYS2d 606 [2007], quoting LSPA Enter., Inc. v Jani-King of N.Y., Inc., 31 AD3d 394, 395, 817 NYS2d 657 [2006]; see Harry Casper, Inc. v Pines Assoc., L.P., 53 AD3d 764, 765, 861 NYS2d 820 [2008]; Fleet Capital Leasing/Global Vendor Fin. v Angiuli Motors, Inc., 15 AD3d 535, 790 NYS2d 684 [2005]).
[HN3] ” ‘Absent a strong showing that it should be set aside, a forum selection agreement will control’ ” (Horton v Concerns of Police Survivors, Inc., 62 AD3d 836, 836, 878 NYS2d 793 [2009], quoting Di Ruocco v Flamingo Beach Hotel & Casino, 163 AD2d 270, 272, 557 NYS2d 140 [1990]).
The Forum Selection Clause Is Prima Facie Valid and Enforceable
In Horton v Concerns of Police Survivors, Inc. (62 AD3d 836-837, 878 NYS2d 793 [2009]), considering a forum selection clause under similar circumstances, we concluded,
“Here, the plaintiff failed to make the requisite ‘strong showing’ that the forum selection clause in her employment [***14] agreement, which requires disputes to be decided in the courts of the State of Missouri, should be set aside. Although the plaintiff averred that she is a single mother who resides with her teenaged daughter in Dutchess County, New York, this claim was insufficient, standing alone, to demonstrate that enforcement of the forum selection clause would be unjust. The plaintiff offered no evidence that the cost of commencing a wrongful discharge action in Missouri would be so financially prohibitive that, for all practical purposes, she would be deprived of her day in court. Moreover, the plaintiff did not allege that the inclusion of a forum selection clause in her employment contract was the product of overreaching, and she did not demonstrate that the clause is unconscionable.” (Citations omitted.)
[1] Similarly, here, the plaintiffs failed to demonstrate that the forum selection clause is unreasonable or unjust, or that a trial in Wayne County, Pennsylvania, would be so gravely difficult that, for all practical purposes, they would be deprived of their day in court. Moreover, the plaintiffs failed to allege, let [*250] alone demonstrate, that the forum selection clause was the [***15] result of fraud or overreaching. Under these circumstances, the plaintiffs failed to make any showing, let alone a strong showing, that the forum selection clause should be set aside on such bases (id.; see Trump v Deutsche Bank Trust Co. Ams., 65 AD3d 1329, 1331-1332, 887 NYS2d 121 [2009]; compare Yoshida v PC Tech U.S.A. & You-Ri, Inc., 22 AD3d 373, 803 NYS2d 48 [2005] [the Supreme Court properly declined to enforce a contractual forum selection clause fixing Tokyo as the forum for any litigation between the parties, since the plaintiff made “a strong showing that a trial in Tokyo would be so impracticable and inconvenient that she would be deprived of her day in court”]).
The Forum Selection Clause Applies to this Action
[2] Further, the forum selection clause applies to the instant tort action. Notwithstanding the placement of the forum selection clause in the sixth paragraph of the Camp Contract, which otherwise pertains to fees, tuition, and refund policies, the applicability of the forum selection clause does not turn on the type or nature of the dispute between the parties. Rather, by its express language, the forum selection clause applies to “any dispute that may arise out of this agreement or otherwise between the [***16] parties to which the camp or its agents is a party” (see [**56] Tourtellot v Harza Architects, Engrs. & Constr. Mgrs., 55 AD3d 1096, 1097-1098, 866 NYS2d 793 [2008] [rejecting the defendant’s claim that the subject forum selection clause in its agreement with the third-party defendant ” ‘was never intended to apply to third-party claims in personal injury and products liability actions such as . . . plaintiff’s action here,’ (since) under its broad and unequivocal terms, the applicability of the subject forum selection clause does not turn on the type or nature of the dispute between them; rather, it applies to ‘any dispute arising under or in connection with’ their agreement”]; see also Buhler v French Woods Festival of Performing Arts, 154 AD2d 303, 304, 546 NYS2d 591 [1989] [in a personal injury action to recover damages for negligence, the plaintiffs were bound by a forum selection clause in a camp enrollment contract which provided that “(t)he venue of any dispute that may arise out of this agreement or otherwise between the parties to which the camp or its agents is a party shall be either the Village of Hancock, N.Y. Justice Court or the County or State Supreme Court in Delaware County”]).
Jurisdiction and Venue
[3] Moreover, the forum [***17] selection clause is enforceable as a general matter even though it does not include any language [*251] expressly providing that the plaintiffs and the Camp intended to grant exclusive jurisdiction to Pennsylvania. The forum selection clause relates to both jurisdiction and venue, and employs mandatory venue language, providing that the venue of any dispute arising out of the agreement or otherwise between the parties “shall be either the local District Justice Court or the Court of Common Pleas, Wayne County, Pennsylvania.” Accordingly, since the forum selection clause addresses jurisdiction and contains mandatory venue language, the clause fixing venue is enforceable (see Fear & Fear, Inc. v N.I.I. Brokerage, L.L.C., 50 AD3d 185, 187, 851 NYS2d 311 [2008]; John Boutari & Son, Wines & Spirits, S.A. v Attiki Importers & Distribs. Inc., 22 F3d 51, 52 [1994]).
Enforceability of Forum Selection Clause by Nonsignatories
Notwithstanding the fact that the forum selection clause is prima facie valid and enforceable and applicable to the instant tort action as a general matter, this Court must further determine whether the defendant doctors and Higgins, who are not signatories to the Camp Contract, may enforce the forum selection clause.
[HN4] As [***18] a general rule, “only parties in privity of contract may enforce terms of the contract such as a forum selection clause found within the agreement” (Freeford Ltd. v Pendleton, 53 AD3d 32, 38, 857 NYS2d 62 [2008]; see ComJet Aviation Mgt. v Aviation Invs. Holdings, 303 AD2d 272, 758 NYS2d 607 [2003]). However,
[HN5] “there are three sets of circumstances under which a non-party may invoke a forum selection clause: First, it is well settled that an entity or individual that is a third-party beneficiary of the agreement may enforce a forum selection clause found within the agreement. Second, parties to a ‘global transaction’ who are not signatories to a specific agreement within that transaction may nonetheless benefit from a forum selection clause contained in such agreement if the agreements are executed at the same time, by the same parties or for the same purpose. Third, a nonparty that is ‘closely related’ to one of the signatories can enforce a forum selection clause. The relationship between the nonparty and the signatory in such cases must be sufficiently close so that enforcement of the clause is foreseeable by [**57] virtue of the relationship between them.” (Freeford Ltd. v Pendleton, 53 AD3d at 38-39 [citations [*252] omitted]; see Direct Mail Prod. Servs. v MBNA Corp., 2000 US Dist LEXIS 12945, *8, 2000 WL 1277597,*3 [SD NY 2000]; [***19] cf. EPIX Holding Corp. v Marsh & McLennan Cos., Inc., 410 NJ Super 453, 463, 982 A2d 1194, 1200 [2009] [“It is clear that in certain situations, a non-signatory to an arbitration agreement may compel a signatory to arbitrate. Since arbitration agreements are analyzed under traditional principles of state law, such principles allow a contract to be enforced by or against nonparties to the contract through assumption, piercing the corporate veil, alter ego, incorporation by reference, third-party beneficiary theories, waiver and estoppel” (citations and internal quotation marks omitted)].)
[4] Here, relying on the provision in the Camp Contract by which the plaintiffs granted authority to the Camp and to its “assigns” in all medical matters, inter alia, to hospitalize and treat Jordan, Dina Farrell, Michael Farrell, Scagnelli, and Higgins claim to have a sufficiently close relationship with the Camp such that enforcement of the forum selection clause by them was foreseeable to the plaintiffs by virtue of that relationship. Significantly, however, there is nothing in the Camp Contract indicating that the Camp intended to use Dina Farrell, Michael Farrell, Scagnelli, and Higgins in particular in [***20] the event Jordan required “off-camp” medical services. In fact, there is nothing in the Camp Contract indicating that the Camp intended to use Wilson Memorial–located in a different state from the Camp–and its physicians and physician assistants in the event Jordan required medical services.
Under these circumstances, Dina Farrell, Michael Farrell, Scagnelli, and Higgins do not have a sufficiently close relationship with the Camp such that enforcement of the forum selection clause by them was foreseeable to the plaintiffs by virtue of that relationship (cf. Freeford Ltd. v Pendleton, 53 AD3d at 40-41 [“Even a cursory examination of these two agreements makes clear that (defendants) Lane Pendleton and Cairnwood Management had every reason to foresee that (plaintiff) Freeford would seek to enforce the forum selection clause against them”]; Dogmoch Intl. Corp. v Dresdner Bank, 304 AD2d 396, 397, 757 NYS2d 557 [2003] [“(a)lthough defendant was a nonsignatory to the account agreements, it was reasonably foreseeable that it would seek to enforce the forum selection clause given the close relationship between itself and its (signatory) subsidiary”]; Direct [*253] Mail Prod. Servs. v MBNA Corp., 2000 US Dist LEXIS 12945, *10-14, 2000 WL 1277597, *4-5 [***21] [where “a number of . . . clauses in the Agreement between (plaintiff) Direct Mail and (nonparty) MBNA Direct indicate that the signatories intended the contract to benefit related (nonsignatory defendant) MBNA companies,” MBNA Corporation and MBNA America Bank, N.A., were sufficiently closely related to MBNA Direct such that it was foreseeable that they would seek to enforce a forum selection clause contained in the subject agreement]).
[5] Conversely, however, we conclude that Wysoki, as an employee of the Camp, is entitled to enforce the forum selection clause despite her status as a nonsignatory to the Camp Contract. The forum selection clause itself applies to “any dispute that may arise out of this agreement or otherwise between the parties to which the camp or its agents is a party” (emphasis added). Moreover, we find that the [**58] Camp’s relationship with Wysoki, its on-site medical employee, was “sufficiently close so that enforcement of the clause [was] foreseeable by virtue of the relationship between them” (Freeford Ltd. v Pendleton, 53 AD3d at 39). Thus, Wysoki, despite being a nonsignatory to the Camp Contract, was entitled to enforce the valid forum selection clause. Accordingly, [***22] the Supreme Court should have granted that branch of the doctor defendants’ cross motion which was to dismiss the complaint insofar as asserted against Wysoki based on the forum selection clause.
Conclusion
The Supreme Court properly denied that branch of Higgins’ motion which was to dismiss the complaint insofar as asserted against her pursuant to CPLR 3211 (a) (1) and 501 based on the forum selection clause. However, the Supreme Court improperly, upon reargument, adhered to its prior determination denying that branch of the doctor defendants’ cross motion which was to dismiss the complaint insofar as asserted against Wysoki pursuant to CPLR 3211 (a) (1) and 501 based on the forum selection clause.
Accordingly, the appeal from the order entered June 13, 2008 is dismissed, as that order was superseded by the order entered September 30, 2008, made upon reargument. The order entered September 30, 2008 is modified, on the law, by deleting the provision thereof, upon reargument, adhering to the determination in the order entered June 13, 2008, denying that branch of the doctor defendants’ cross motion which was to dismiss the complaint insofar as asserted against Wysoki pursuant to CPLR 3211 (a) (1) [***23] and 501 based on the forum selection clause and substituting therefor a provision, upon reargument, vacating the determination in the order entered June 13, 2008 denying that branch of the doctor defendants’ cross motion which was to dismiss the complaint [*254] insofar as asserted against Wysoki pursuant to CPLR 3211 (a) (1) and 501 based on the forum selection clause and thereupon granting that branch of the cross motion. As so modified, the order entered September 30, 2008 is affirmed insofar as appealed from.
Rivera, J.P., Miller and Roman, JJ., concur.
Ordered that the appeal from the order entered June 13, 2008 is dismissed, without costs or disbursements, as that order was superseded by the order entered September 30, 2008, made upon reargument; and it is further,
Ordered that the order entered September 30, 2008 is modified, on the law, by deleting the provision thereof, upon reargument, adhering to the determination in the order entered June 13, 2008, denying that branch of the cross motion of the defendants Randee Wysoki, Dina Farrell, Michael Farrell, and Gregory Scagnelli which was to dismiss the complaint insofar as asserted against Randee Wysoki pursuant to CPLR 3211 (a) (1) and [***24] 501 based on a forum selection clause and substituting therefor a provision, upon reargument, vacating the determination in the order entered June 13, 2008, denying that branch of the cross motion of the defendants Randee Wysoki, Dina Farrell, Michael Farrell, and Gregory Scagnelli which was to dismiss the complaint insofar as asserted against Randee Wysoki pursuant to CPLR 3211 (a) (1) and 501 based on a forum selection clause and thereupon granting that branch of the cross motion; as so modified, the order entered September 30, 2008, is affirmed insofar as appealed from, without costs or disbursements.
Texas makes it easier to write a release because the law is clear.
Posted: December 19, 2011 Filed under: Assumption of the Risk, Minors, Youth, Children, Summer Camp, Texas, Youth Camps, Zip Line | Tags: charitable immunity, Charitable Immunity Act, Charity, Negligence, Salvation Army, Summary judgment, Summer Camp, Texas, United States district court, zip line 1 CommentGalvan, et al., v. The Salvation Army, 2011 U.S. Dist. LEXIS 47257
Too bad no one read the law to the Salvation Army in this case.
This case was filed in the Federal District Court of the Southern District of Texas. The decision was based on a Motion for Summary Judgment filed by the plaintiff to throw out the defendant’s defense of release. Normally, these types of motions are filed by the defendants to end the litigation not by the plaintiff. There was also an issue of whether the charitable immunity statute applied to limit the damages in the case.
The facts which gave rise to the case are the defendants were parents of an eleven year-old boy who attended Camp Hoblitzelle which was owned and operated by the Salvation Army of Texas. While attending the camp the minor was riding a zip line when he fell 40-50’ suffering unnamed injuries.
There was a blank in the release where the activity the parties were releasing was to be filled in. The blank line in this case was filled in with the plaintiff’s name Cynthia Perez written in as the activity. The court took delight in pointing this out.
Summary of the case
The plaintiff filed their motion for summary judgment to eliminate the defense of release. The minor’s mother signed the Permission/Waiver Form for Residential Camps prior to the minor attending camp.
Under Texas law, there are two tests to determine if a release is valid; (1) the express negligence doctrine and (2) the conspicuousness requirement test.
“A release that fails to satisfy both of the two requirements is unenforceable as a matter of law.”
The Express Negligence Doctrine is:
The express negligence doctrine requires that a party’s intent to be released from the consequences of that party’s own negligence must be expressed in specific terms within the four corners of the release document.
The release in this case used the language “…hereby voluntarily releases The Salvation Army from any and all liability resulting from or arising in any manner whatsoever out of any participation in any Activity.” This language was not strict enough to place the signor on notice that they were giving up their legal rights according to the court.
The release was not clear. It did not state that the defendant was being released for its future negligence. Although there is no requirement that the word negligence be in the release and referenced, it is clear the release would be difficult to write without the word negligence. The court held the release at issue had no clear expression or language showing intent to release the defendant from its own negligence.
Consequently, the release failed the Express Negligence Doctrine.
The Conspicuousness requirement test requires.
… the releasing language must be conspicuously written, such that a reasonable person would have noticed it. Examples of conspicuous language include language that appears in contrasting type or color, in all capital letters, or otherwise calls attention to itself.
With regard to the conspicuousness, requirement test the court stated.
The release language is in the same font and font size as the remainder of the document. There is no bolding, underlining, or other mechanism to make the release language conspicuous. Instead, the release language is buried in a full page of single-spaced, small font size text.
Here is a great example that your release cannot hide the important legal language from anyone signing it.
The court also looked into the Charitable Immunity Act and held the issue was not ripe because whether or not the defendant was subject to the limitation of damages would not be an issue unless the plaintiff was able to recover an amount greater than the limitation of $500,000 per person and $1,000,000 per occurrence.
The court also stated the Charitable Immunity Act did not apply to defendants whose “act or omission that is intentional, wilfully negligent, or done with conscious indifference or reckless disregard for the safety of others.” The plaintiff had plead actions of the defendant in almost identical language which was another issue making the issue not ripe for decision.
So Now What?
This decision is a road map on what not to do with a release in Texas.
1. Make sure your release states that it is a release and the person signing it is giving up their legal rights.
2. Make sure the language in the release is clear. The plaintiff is releasing you from liability for your negligence in advance of any injury. You are going to have to use the word negligence in your release.
3. The release language cannot be hidden. It must be set out in such a way that it is identifiable as something important that the signor needs to know about.
4. All blanks in the document need to be located in one place so it only takes a quick scan to make sure everything is completed properly.
5. Anything that can be completed by the defendant or filled in must be completed by the defendant.
6. Have an attorney that knows and understands your operation and the law affecting your business write your release.
Writing a release is not like cooking. When you cook you have to really screw up to make something that is not edible. (I’ve been single my entire life so my definition of edible may be different from yours……) Writing a release is a much more precise endeavor.
What do you think? Leave a comment.
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Texas makes it easier to write a release because the law is clear.
Posted: November 21, 2011 Filed under: Minors, Youth, Children, Summer Camp, Youth Camps | Tags: Minor, Releases / Waivers, Summer Camp, Texas Leave a commentGalvan, et al., v. The Salvation Army, 2011 U.S. Dist. LEXIS 47257
Too bad no one read the law to the Salvation Army in this case.
This case was filed in the Federal District Court of the Southern District of Texas. The decision was based on a Motion for Summary Judgment filed by the plaintiff to throw out the defendant’s defense of release. Normally, these types of motions are filed by the defendants to end the litigation not by the plaintiff. There was also an issue of whether the charitable immunity statute applied to limit the damages in the case.
The facts which gave rise to the case are the defendants were parents of an eleven year-old boy who attended Camp Hoblitzelle which was owned and operated by the Salvation Army of Texas. While attending the camp the minor was riding a zip line when he fell 40-50’ suffering unnamed injuries.
There was a blank in the release where the activity the parties were releasing was to be filled in. The blank line in this case was filled in with the plaintiff’s name Cynthia Perez written in as the activity. The court took delight in pointing this out.
Summary of the case
The plaintiff filed their motion for summary judgment to eliminate the defense of release. The minor’s mother signed the Permission/Waiver Form for Residential Camps prior to the minor attending camp.
Under Texas law, there are two tests to determine if a release is valid; (1) the express negligence doctrine and (2) the conspicuousness requirement test.
“A release that fails to satisfy both of the two requirements is unenforceable as a matter of law.”
The Express Negligence Doctrine is:
The express negligence doctrine requires that a party’s intent to be released from the consequences of that party’s own negligence must be expressed in specific terms within the four corners of the release document.
The release in this case used the language “…hereby voluntarily releases The Salvation Army from any and all liability resulting from or arising in any manner whatsoever out of any participation in any Activity.” This language was not strict enough to place the signor on notice that they were giving up their legal rights according to the court.
The release was not clear. It did not state that the defendant was being released for its future negligence. Although there is no requirement that the word negligence be in the release and referenced, it is clear the release would be difficult to write without the word negligence. The court held the release at issue had no clear expression or language showing intent to release the defendant from its own negligence.
Consequently, the release failed the Express Negligence Doctrine.
The Conspicuousness requirement test requires.
… the releasing language must be conspicuously written, such that a reasonable person would have noticed it. Examples of conspicuous language include language that appears in contrasting type or color, in all capital letters, or otherwise calls attention to itself.
With regard to the conspicuousness, requirement test the court stated.
The release language is in the same font and font size as the remainder of the document. There is no bolding, underlining, or other mechanism to make the release language conspicuous. Instead, the release language is buried in a full page of single-spaced, small font size text.
Here is a great example that your release cannot hide the important legal language from anyone signing it.
The court also looked into the Charitable Immunity Act and held the issue was not ripe because whether or not the defendant was subject to the limitation of damages would not be an issue unless the plaintiff was able to recover an amount greater than the limitation of $500,000 per person and $1,000,000 per occurrence.
The court also stated the Charitable Immunity Act did not apply to defendants whose “act or omission that is intentional, wilfully negligent, or done with conscious indifference or reckless disregard for the safety of others.” The plaintiff had plead actions of the defendant in almost identical language which was another issue making the issue not ripe for decision.
So Now What?
This decision is a road map on what not to do with a release in Texas.
1. Make sure your release states that it is a release and the person signing it is giving up their legal rights.
2. Make sure the language in the release is clear. The plaintiff is releasing you from liability for your negligence in advance of any injury. You are going to have to use the word negligence in your release.
3. The release language cannot be hidden. It must be set out in such a way that it is identifiable as something important that the signor needs to know about.
4. All blanks in the document need to be located in one place so it only takes a quick scan to make sure everything is completed properly.
5. Anything that can be completed by the defendant or filled in must be completed by the defendant.
6. Have an attorney that knows and understands your operation and the law affecting your business write your release.
Writing a release is not like cooking. When you cook you have to really screw up to make something that is not edible. (I’ve been single my entire life so my definition of edible may be different from yours……) Writing a release is a much more precise endeavor.
What do you think? Leave a comment.
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Facebook Page: Outdoor Recreation & Adventure Travel Law
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Galvan, et al., v. The Salvation Army, 2011 U.S. Dist. LEXIS 47257
Posted: November 21, 2011 Filed under: Legal Case, Minors, Youth, Children, Summer Camp, Texas, Youth Camps | Tags: Minor, Releases / Waivers, Summer Camp 2 CommentsGalvan, et al., v. The Salvation Army, 2011 U.S. Dist. LEXIS 47257
To read the analysis of this case see: Texas makes it easier to write a release because the law is clear.
Bruce Galvan, et al., Plaintiffs, v. The Salvation Army, Defendant.
CIVIL ACTION NO. H-10-3365
United States District Court For The Southern District Of Texas, Houston Division
2011 U.S. Dist. LEXIS 47257
May 3, 2011, Decided
May 3, 2011, Filed
CORE TERMS: Charitable Immunity Act, summary judgment, Charitable, amount of damages, conspicuousness, premature, matter of law, own negligence, settlement, affirmative defense, font, charitable organization, liability insurance coverage, per person, per occurrence, notice requirements, bodily injury, jury verdict, conscious indifference, reckless disregard, self-insurance, conspicuous, discovery, retention, qualify, cap, insurance coverage, enforceable, undisputed, attended
COUNSEL: [*1] For Bruce Galvan, Individually and as Next Friend, Cynthia Perez, Individually And as Next Friend, Plaintiffs: John Paul Venzke, LEAD ATTORNEY, The Venzke Law Firm LLP, Houston, TX; Michael Andrew Fisher, Dyment & Fisher, Houston, TX.
For Salvation Army, Defendant: Teresa Jones Del Valle, LEAD ATTORNEY, Del Valle Law Firm, P.C., Houston, TX.
JUDGES: Nancy F. Atlas, United States District Judge.
OPINION BY: Nancy F. Atlas
OPINION
MEMORANDUM AND ORDER
This personal injury case is before the Court on the Motion for Partial Summary Judgment Regarding Defendant’s Affirmative Defense of Release (“Release Motion”) [Doc. # 23] filed by Plaintiffs Bruce Galvan and Cynthia Perez. Defendant filed an Opposition [Doc. # 27], and Plaintiffs filed a Reply [Doc. # 28]. Also pending is Plaintiffs’ Motion for Partial Summary Judgment Regarding Defendant’s Defense of The Charitable Immunity and Liability Act of 1987 (“Charitable Immunity Motion”), to which Defendant filed an Opposition [Doc. # 29], and Plaintiffs filed a Reply [Doc. # 34]. Having reviewed the full record and having considered relevant legal authorities, the Court grants the Release Motion and denies without prejudice the Charitable Immunity Motion.
I.FACTUAL BACKGROUND
Plaintiffs [*2] Bruce Galvan and Cynthia Perez are parents of Plaintiff Christopher Galvan. Christopher was eleven years old when he attended Camp Hoblitzelle, a facility owned and operated by Defendant The Salvation Army. In June 2010, while at Camp Hoblitzelle, Christopher Galvan fell 40-50 feet from a zip-line and was seriously injured. Before Christopher attended Camp Hoblitzelle, Cynthia Perez signed a “Permission/Waiver Form for Residential Camps.” See Exh. A to Release Motion.
Plaintiffs filed this lawsuit seeking to recover from The Salvation Army for the injury to Christopher Galvan. Defendant has asserted the existence of the Release as an affirmative defense. Defendant has asserted also that The Charitable Immunity and Liability Act of 1987 (“Charitable Immunity Act”) limits its liability in this case to $500,000.00 per person and $1,000,000.00 per occurrence. Plaintiffs have moved for summary judgment on each of these arguments. The motions have been fully briefed.
II.STANDARD FOR SUMMARY JUDGMENT
Rule 56 of the Federal Rules of Civil Procedure provides for the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a sufficient showing [*3] of the existence of an element essential to the party’s case for which that party will bear the burden at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986); Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc); see also Baton Rouge Oil and Chem. Workers Union v. ExxonMobil Corp., 289 F.3d 373, 375 (5th Cir. 2002). In deciding a motion for summary judgment, the Court must determine whether the “pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c); Celotex Corp., 477 U.S. at 322-23; Weaver v. CCA Indus., Inc., 529 F.3d 335, 339 (5th Cir. 2008). Summary judgment is an appropriate mechanism for resolving issues of law arising from a materially complete factual record. See Trevino v. Yamaha Motor Corp., 882 F.2d 182, 184 (5th Cir. 1989).
III.RELEASE MOTION
Defendant has asserted the existence of the Release signed by Cynthia Perez as an affirmative defense. Plaintiffs argue that they are entitled to summary judgment on the release defense because the Release in this case fails to satisfy the [*4] requirements for it to be enforceable.
Under Texas law, there are two fair notice requirements for release agreements: (1) the express negligence doctrine and (2) the conspicuousness requirement. See Storage & Processors, Inc. v. Reyes, 134 S.W.3d 190, 192 (Tex. 2004); Dresser Indus., Inc. v. Page Petroleum, Inc., 853 S.W.2d 505, 509 (Tex. 1993). The express negligence doctrine requires that a party’s intent to be released from the consequences of that party’s own negligence must be expressed in specific terms within the four corners of the release document. See Fisk Elec. Co. v. Constructors & Assocs., Inc., 888 S.W.2d 813, 814 (Tex. 1994); Ethyl Corp. v. Daniel Constr. Co., 725 S.W.2d 705, 708 (Tex. 1987). The conspicuousness requirement provides that the releasing language must be conspicuously written, such that a reasonable person would have noticed it. See Dresser, 853 S.W.2d at 511. Examples of conspicuous language include language that appears in contrasting type or color, in all capital letters, or otherwise calls attention to itself. See Reyes, 134 S.W.3d at 192 (citing Littlefield v. Schaefer, 955 S.W.2d 272, 274-75 (Tex. 1997)); Dresser, 853 S.W.2d at 511.
Compliance with [*5] the fair notice requirements is a question of law for the Court. Dresser, 853 S.W.2d at 509. A release that fails to satisfy both of the two requirements is unenforceable as a matter of law. Storage & Processors, 134 S.W.3d at 192. In this case, the Court concludes that the Release asserted by Defendant does not satisfy either requirement.
The Release provides that the signer “hereby voluntarily releases The Salvation Army from any and all liability resulting from or arising in any manner whatsoever out of any participation in any Activity.” See Release, Exh. 1 to Release Motion. As an initial matter, the Release purports to release Defendant from liability for injury suffered while participating in any “Activity.” The “Activity” is to be identified by filling in a blank line on the Release form. On the Release at issue in this case, the “Activity” line contains no identified activity but, instead, has “Cynthia Perez” written in as the “Activity.”
More importantly, the Release language does not specifically state that Defendant is being released from liability for its own future negligence. Indeed, there is no express mention of negligence at all. Although there is no requirement that [*6] the release contain the specific word “negligence,” the intent to release a party from liability for its own negligence must be clearly expressed. See Atlantic Richfield Co. v. Petroleum Personnel, Inc., 768 S.W.2d 724, 726 (Tex. 1989); Silsbee Hosp., Inc. v. George, 163 S.W.3d 284, 290 (Tex. App. — Beaumont 2005, review denied). In the Release at issue in this case, there is no clear expression of an intent to release Defendant from its own negligence in connection with Christopher Galvan’s participation in zip-lining.
The Release fails also to satisfy the conspicuousness requirement. The release language is in the same font and font size as the remainder of the document. There is no bolding, underlining, or other mechanism to make the release language conspicuous. Instead, the release language is buried in a full page of single-spaced, small font size text.
The Court concludes that the Release in this case does not satisfy the express negligence or conspicuousness requirements and, as a result, the Release is not enforceable as a matter of law.
IV.CHARITABLE IMMUNITY MOTION
The Charitable Immunity Act limits liability of a qualified charitable organization to $500,000.00 per person and [*7] $1,000,000.00 per occurrence. See Tex. Civ. Prac. & Rem. Code § 84.006. To qualify for the limitation, the charitable organization must have liability insurance coverage “in the amount of at least $500,000 for each person and $1,000,000 for each single occurrence for death or bodily injury . . ..” See Tex. Civ. Prac. & Rem. Code § 84.007(g). The Charitable Immunity Act provides that the liability insurance coverage “may be provided under a contract of insurance or other plan of insurance authorized by statute and may be satisfied by the purchase of a $1,000,000 bodily injury and property damage combined single limit policy.” See id.
Defendant asserts that it is entitled to the damages limitation of the Charitable Immunity Act. It is undisputed that Defendant has over $35,000,000.00 of insurance coverage. It is also undisputed, however, that the first $500,000.00 is in the form of a self-insurance retention and the next $4,500,000.00 is in the form of The Salvation Army’s Risk Trust. Plaintiffs argue that Defendant is not entitled to the damages limitation because Defendant is self-insured and self insurance does not meet the statutory requirement of the Charitable Immunity Act. 1
1 Plaintiffs [*8] also argue that Defendant is judicially estopped to assert the Charitable Immunity Act’s limitation because a different Salvation Army entity in Maine asserted in a lawsuit in 1997 that the Salvation Army entity in Maine did not have insurance coverage. The Court concludes on this limited record that Plaintiffs have not established an adequate factual basis for judicial estoppel to apply.
Plaintiffs in this case have not alleged an amount of damages. They allege that the amount in controversy is in excess of $75,000.00. See Amended Complaint [Doc. # 16], ¶ 1. Plaintiffs allege also that Christopher Galvan’s medical bills exceed $200,000.00. See id., ¶ 5. Thus, on this record, the specific amounts alleged by Plaintiffs do not exceed the Charitable Immunity Act’s limitation. Moreover, the amount of damages has not been established by either settlement or a jury award to be in excess of the Charitable Immunity Act’s limitation. As a result, the Court concludes that a decision on whether the limitation applies to a fully-funded self insurance retention is premature at this stage of the proceedings. See, e.g., Morgan v. Fellini’s Pizza, Inc., 64 F. Supp. 2d 1304, 1316, n.6 (N.D. Ga. 1999) [*9] (noting that a request for summary judgment as to whether a damages cap applies was premature); Rafferty v. Howard, 2010 U.S. Dist. LEXIS 98423, 2010 WL 3768142, *1 (S.D. Miss. Sept. 20, 2010) (holding that preliminary ruling on whether statutory cap applies was premature). If there is a settlement or jury verdict for more than $1,000,000.00 in this case, the Court will at that time decide whether Defendant qualifies for the Charitable Immunity Act’s limitation.
Additionally, the Charitable Immunity Act provides that its limitations do not apply “to an act or omission that is intentional, wilfully negligent, or done with conscious indifference or reckless disregard for the safety of others.” See Tex. Civ. Prac. & Rem. Code § 84.007(a). Plaintiffs specifically allege that Defendant’s actions in this case were “intentional, willfully negligent, or done with conscious indifference or reckless disregard for the safety of Christopher Galvan and others.” See Amended Complaint [Doc. # 16], ¶ 12. Should the jury find that Defendant’s actions were as alleged by Plaintiffs in paragraph 12 of the Amended Complaint, the issue regarding whether self-insurance satisfies the insurance requirement of the Charitable Immunity Act [*10] would become moot.
V.CONCLUSION AND ORDER
The release relied upon by Defendant satisfies neither the express negligence doctrine nor the conspicuousness requirement. As a result, there has been no effective release of Defendant for its alleged negligence in this case. Plaintiffs have not alleged an amount of damages and no amount of damages has been determined either through settlement or by jury verdict. As a result, it is premature to decide whether the Act limits the amount of damages recoverable in this case. It is, therefore,
ORDERED that Plaintiffs’ Release Motion [Doc. # 23] is GRANTED and Plaintiffs’ Charitable Immunity Motion [Doc. # 26] is DENIED WITHOUT PREJUDICE as premature.
SIGNED at Houston, Texas this 3rd day of May, 2011.
/s/ Nancy F. Atlas
Nancy F. Atlas
United States District Judge
Summer camp supervision issues are always part of any lawsuit and tough to determine in New York.
Posted: May 2, 2011 Filed under: Assumption of the Risk, Summer Camp | Tags: Adventure travel, Child, JimMoss, Minor, New York, Outdoor recreation, Parental Responsibility, Parental Rights, Prank, Rock climbing, Ropes course, Summer Camp Leave a commentKosok v. Young Men’s Christian Association of Greater New York, 24 A.D.2d 113; 264 N.Y.S.2d 123; 1965 N.Y. App. Div. LEXIS 3042
As long as there was no notice of a problem and no rule of the camp or standard for the camp, assumption of the risk is a valid defense against minors claim.
New York had dozens of decisions concerning lawsuits by injured campers. It is going to take months to figure out if there is any discernable rule or idea on how to run a camp in New York. This decision is a start.
At this camp groups of boys were divided into cabins by age groups. After lunch “camp regulations” required a rest period. Younger campers had to rest on their beds; older boys were just required to do sedentary activities. (Why you don’t want to wear out kids, by the time they go to bed at camp is beyond me?)
During one of the rest periods, a group of boys threaded a fishing line over a rafter and attached a galvanized bucket to it. When someone would walk underneath the bucket, they would lower it where it would hit the unsuspecting camper making a pop. After another camper had the prank played on them the plaintiff was enticed into the cabin where the bucket was dropped. The plaintiff suffered unspecified injuries.
The plaintiff sued the camp and the two boys involved in the prank. The two boys were dismissed from the lawsuit by the trial court. The plaintiff sued for “improper supervision and a failure to provide proper medical care after the accident.” The case went to trial and the jury found for the plaintiff on the supervision claim and for the defendant camp for the medical care claim. The camp appealed.
This decision has great quotes, which have been quoted in numerous other New York decisions, and then, to some extent, seems to be ignored. However, the court found that boys at camp have fun.
Summer camp, it will be seen that constant supervision is not feasible.
[constant supervision] Nor is it desirable. One of the benefits of such an institution is to inculcate self-reliance in the campers which on overly protective supervision would destroy.
A certain amount of horseplay is almost always to be found in gatherings of young people, and is generally associated with children’s camps. It is only to be discouraged when it becomes dangerous. Nothing in the incident itself or the surrounding circumstances indicates any notice to defendant that such was likely to result here.
The court did find that the standard of care for a camp was that of a reasonable prudent parent. That standard though varies with the age of the child.
The court held the jury verdict should be reversed, and the case dismissed because the court found no negligence on the part of the defendant.
So?
This case is 52 years old. It is a still relevant law in New York. However, I believe that based on other New York decisions and the standard of care for campers in New York has changed. Many decisions quote the language of this case, and then find a difference in the facts to hold the camp liable.
So Now What?
To work within the boundaries of these and other cases the best result would be to inform parents and campers of the risk. Pictures, videos, brochures and the website are a start. Have the parents and campers to acknowledge that there is horseplay when kids get together and have them acknowledge the kids get hurt.
This should be in a written document that refers to the website as the source of more information or even better information they have reviewed. An assumption of the risk form for the minors and a release for the parents should do more than just have the simple legal language of a release. Each document, or the same document, if written correctly, should identify the activities the minors will be engaging in and the possible risks for all of those activities.
When you are creating your website, don’t be afraid to show kids being unsuccessful as well as successful. Kids fall while playing sports, kids get tagged out running bases and canoes tip over throwing kids in the water. Follow the old Clint Eastwood movie; show the good and the bad, maybe the ugly.
A scrape on a camper is a good way to show parents that you have a medical team on hand. It also lets parents realize that kids are outdoors, having fun and probably getting hurt.
The more you can prove you informed the parents and the campers of the risks the greater your chances at success in keeping everyone happy and out of court.
What do you think? Leave a comment.
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Release stops suit for falling off horse at Colorado summer Camp.
Posted: April 18, 2011 Filed under: Colorado, Equine Activities (Horses, Donkeys, Mules) & Animals, Minors, Youth, Children, Release (pre-injury contract not to sue), Youth Camps | Tags: Appellate Court, Child, Colorado, Gross negligence, Hamill, Minor, Parental Responsibility, Parental Rights, Rock climbing, Summary judgment, Summer Camp Leave a commentHamill v. Cheley Colorado Camps, Inc., 2011 Colo. App. LEXIS 495
I always enjoy it when people with money, sue to get more money…..
In this case, the minor plaintiff fell off a horse and suffered a broken arm. She sued for her damages. What makes this sort of amusing is the minor had attended the camp two prior years. Her mother has signed the release three consecutive times. However, the plaintiff sued.
The allegations in the complaint were the wrangler had inappropriately saddled the horse she rode. This is a classic claim used to get around equine liability acts. Equine liability acts are 100% effective. Since they have been passed no horse has been sued. However, suits against horse owners have increased.
For additional articles about equine (horse) lawsuits and why Equine Liability Acts have little value see: $2.36 M awarded to a boy kicked by horse during inner-city youth program and $1.2 M award in horseback riding fatality in Wyoming.
The district court (trial or first court) granted the defendant camp’s motion for summary judgment. And the Plaintiff appealed. The basis for the appeal was:
she was a minor and her mother did not make an informed decision, the agreement did not extinguish her negligence claims and that disputed material facts preclude the grant of summary judgment on her gross negligence claim.
The first issue the court reviewed was whether the release was valid under Colorado law. The court found there were four tests that had to be met for the release to be valid.
(1) the existence of a duty to the public;
(2) the nature of the service performed;
(3) whether the contract was fairly entered into; and
(4) whether the intention of the parties is expressed in clear and unambiguous language.
B & B Livery, Inc. v. Riehl, 960 P.2d 134, 136 (Colo. 1998) (citing Jones, 623 P.2d at 376).
The court found the first two tests were met because recreational activities create no duty to the public and are not necessary for living.
The next test was whether the contract was fairly entered into. This is a case of whether the injured party had the opportunity to go somewhere else or not participate. Whether one party was at the mercy of the other party because of unequal bargaining power. However, again, recreational activities are not something that a parent or participant is forced to undertake. On top of that the mother admitted she voluntarily signed the release…..three times.
More importantly the court found the plaintiff could have attended other camps. She was not forced to attend the defendant camp.
The last test also can be examined multiple ways. First way is, is the agreement plan on its face is it written in such a way that the parties understand what it says or should have understood what it said. Another way is whether the agreement, the release, clearly evidenced the intent of the party’s.
Here you can release one party from negligent conduct as long as the intent of the parties is clearly expressed in the contract. Here the release expressly contained language that the court found was clear to the plaintiff and her mother of the intent of the release.
The agreement sufficiently placed Hamill’s mother on notice that the “[e]quipment used . . . may break, fail or malfunction” and that “counselors . . . may misjudge . . . circumstances.” The breadth of the release persuades us that the parties intended to disclaim legal liability for negligence claims. Indeed, misjudging a situation can amount to negligence.
The classic I now did not understand the release is also looked at this point, and the court rejected that argument.
An agreement with such plain and unambiguous terms will not fail because one of the parties, in hindsight, now claims to have misunderstood the scope of that agreement — to govern only conduct outside of Cheley’s control — based on ambiguities not readily apparent within the four corners of the agreement.
The court succinctly summed up its decision about the release stating:
Because the agreement did not implicate a public duty, did not involve an essential service, was fairly entered into, and it plainly expressed the intent to release prospective negligence claims, we hold that the agreement is valid.
The court then reviewed the recently enacted Colorado statute allowing a parent to sign away a minor’s right to sue C.R.S. § 13-22-107. A recent decision by the Colorado Appellate court had thrown out a release signed by a mother because it was not sufficient to meet the requirements of the statute. See Releases are legal documents and need to be written by an attorney that understands the law and the risks of your program/business/activity and your guests/members/clientele which discussed the case Wycoff v. Grace Community Church of the Assemblies of God, 2010 Colo. App. LEXIS 1832.
The statute requires the parent who is signing a release for a minor to be voluntary and informed. The court stated that “A parent’s decision is informed when the parent has sufficient information to assess the potential degree of risks involved, and the extent of possible injury.” quoting Wycoff v. Grace Community Church of the Assemblies of God, 2010 Colo. App. LEXIS 1832.
Here the mother and the plaintiff knew of the risks because the plaintiff had attended the camp two prior years and had ridden horses those two years.
The final argument was made that the release did not bar claims for gross negligence. However, the court found the complaint and the other documents in the case did not plead any facts giving rise to a claim that would be a gross negligence claim. Under the Colorado law gross negligence is “willful and wanton conduct, that is, action committed recklessly, with conscious disregard for the safety of others.” Nothing in the documents indicated the defendant had acted willfully or wantonly.
One interesting part of this case was a statement quoted in the case from a deposition of the mother. The defendant’s attorney referred to Christopher Reeves, who suffered a fall from a horse becoming a quadriplegic and eventually died from the injuries. The mother answered she personally knew Mr. Reeve. If you want to do a little research, match the names of the parties, and determine who would know other movie stars.
So?
Again and again, and again, make sure you have a well written release. That was the first and best thing done in this case. The release stood up to scrutiny by the trial court and the appellate court.
The next thing is always have good facts. The court pointed out the wrangler checked the saddle two or three times before the plaintiff rode the horse which eliminated the gross negligence argument. Good facts do not mean to only defend yourself when you are going to win. It means to do things right, and you don’t have to worry and if you do have a problem you will win.
Here the wrangler had been well trained in how to deal with the situation and problems of kids at summer camps riding horses. Before the plaintiff was allowed to mount the horse the saddle was checked and double checked.
So Now What?
Hire well, train well and treat well; the three ideas to keep employees part of your defense team. Your employees do not need to lawsuits and not have a lawsuit become a forum for any employee to come back at you.
See 7 Mistakes Made by People, who are called Defendant. Hire good people to begin with. Work hard at hiring people who like people and understand the job. The job is not to show off to little kids about how great a horseman you are, the job is to get kids on horses and have them have a good time. The job is to have the kids leave the ring the same way they entered the ring with a big grin on top of a horse.
Never hire for skills except people skills. You can teach anyone to ride a horse, row a raft or run a ropes course. Finding someone who can remember to double check everything, deal with a problem child and entertain at the same time is a little harder. However, those people are out there, work harder and find them.
7 Mistakes Made by People who are called Defendant.
1. Hire and retain Uncaring Employees: Hire Well, Train Well, and Treat Well
2. Failing to Know Your Customers and why they are buying from you.
3. Failing to Treat Your Customers the Way They Want to Be Treated:
4. Examining the problem from Your Perspective: Your customer sees the problem differently than you. The customer may not even understand the problem.
5. Placing a ridiculous value on principles and pride. Principles & Pride Goethe before a Lawsuit
6. Never know Why you are being sued: Sticking your head in the sand, or passing the problem to a lawyer does not resolve the problem.
7. Forgetting What Your Mother Taught You: If you act like your mother taught you, you won’t be sued.
|
James H. “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 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.
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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Hamill v. Cheley Colorado Camps, Inc., 2011 Colo. App. LEXIS 495
Posted: April 18, 2011 Filed under: Colorado, Equine Activities (Horses, Donkeys, Mules) & Animals, Minors, Youth, Children, Release (pre-injury contract not to sue), Summer Camp | Tags: Cheley Camps, Equine Activities, horseback riding, Release, Star Wars, Summer Camp Leave a commentTo Read an Analysis of this decision see: Release stops suit for falling off horse at Colorado summer Camp.
Hamill v. Cheley Colorado Camps, Inc., 2011 Colo. App. LEXIS 495
Chelsea E. Hamill, Plaintiff-Appellant, v. Cheley Colorado Camps, Inc., a Colorado corporation, Defendant-Appellee.
Court of Appeals No. 10CA0138
COURT OF APPEALS OF COLORADO, DIVISION TWO
2011 Colo. App. LEXIS 495
March 31, 2011, Decided
NOTICE:
THIS OPINION IS NOT THE FINAL VERSION AND SUBJECT TO REVISION UPON FINAL PUBLICATION
PRIOR HISTORY: [*1]
City and County of Denver District Court No. 08CV6587. Honorable Herbert L. Stern, III, Judge.
DISPOSITION: JUDGMENT AFFIRMED.
COUNSEL: Roberts, Levin, Rosenberg, PC, Ross B.H. Buchanan, Bradley A. Levin, Denver, Colorado, for Plaintiff-Appellant.
White and Steele, P.C., John M. Lesback, John P. Craver, Denver, Colorado, for Defendant-Appellee.
JUDGES: Opinion by JUDGE FOX. Casebolt and Loeb, JJ., concur.
OPINION BY: FOX
OPINION
Plaintiff, Chelsea E. Hamill (Hamill), appeals the district court’s grant of summary judgment in favor of defendant, Cheley Colorado Camps, Inc. (Cheley). We affirm the judgment.
I. Facts and Procedural History
Hamill attended summer camp at Cheley in 2002, 2003, and 2004. Before attending camp each summer, Hamill and her parents signed a Liability/Risk Form (the agreement).
In July 2004, when Hamill was fifteen years old, she fell off a Cheley horse and broke her arm. Hamill sued Cheley for negligence and gross negligence, arguing that a Cheley wrangler had inappropriately saddled the horse she rode. The district court granted Cheley’s motion for summary judgment on the two negligence claims, ruling that although Hamill was a minor, the agreement barred her claims and that there was no gross negligence as a matter [*2] of law. 1
1 In addition, the district court determined that whether a saddle can slip due to negligence, or because of animal behavior, presented issues of fact under section 13-21-119, C.R.S. 2010, the equine immunity act. Because of its ruling on the agreement, however, the court also ruled that the equine act claim need not be submitted to a jury.
Hamill appeals the district court’s judgment, claiming that because she was a minor and her mother did not make an informed decision, the agreement did not extinguish her negligence claims and that disputed material facts preclude the grant of summary judgment on her gross negligence claim. We disagree and therefore affirm the judgment.
II. Standard of Review
[HN1] Summary judgment is appropriate where the pleadings, admissions, depositions, answers to interrogatories, and affidavits confirm that no genuine issue of material fact exists and judgment should be entered as a matter of law. C.R.C.P. 56(c); Jones v. Dressel, 623 P.2d 370, 373 (Colo. 1981). When asked to grant summary judgment, the district court “must resolve all doubts as to whether an issue of fact exists against the moving party.” Jones, 623 P.2d at 373. [HN2] We review a summary judgment [*3] ruling de novo. Aspen Wilderness Workshop, Inc. v. Colorado Water Conservation Bd., 901 P.2d 1251, 1256 (Colo. 1995).
Exculpatory agreements are construed strictly against the party seeking to limit its liability. Heil Valley Ranch, Inc. v. Simkin, 784 P.2d 781, 784 (Colo. 1989). However, the validity of such waivers is a question of law, which we review de novo. Jones, 623 P.2d at 376; Stanley v. Creighton Co., 911 P.2d 705, 707 (Colo. App. 1996).
III. Parental Consent to Exculpatory Agreements Affecting Minors
Hamill argues that the exculpatory clauses in the agreement do not bar her negligence claims. She reasons that the agreement is invalid under the four-part test articulated in Jones, 623 P.2d at 376, and that her mother did not make an informed decision under section 13-22-107, C.R.S. 2010, to release her prospective negligence claims. This statute states that [HN3] “[s]o long as [a parent’s] decision [to waive the child’s claims] is voluntary and informed, the decision should be given the same dignity as decisions regarding schooling, medical treatment, and religious education.” § 13-22-107(1)(a)(V), C.R.S. 2010 (emphasis added).
We disagree with Hamill’s position.
The agreement, and [*4] our interpretation of section 13-22-107(1)(a)(V), direct our decision.
The release language in the agreement states:
Release, Waiver of Liability and Indemnification
I, on behalf of myself and my child, hereby release and waive any claim of liability against Cheley . . . with respect to any injury . . . occurring to my child while he/she participates in any and all camp programs and activities.
I hereby agree to indemnify and hold harmless Cheley . . . with respect to any claim asserted by or on behalf of my child as a result of injury . . . .
I HAVE READ AND UNDERSTAND THE ABOVE AND AGREE TO BE BOUND BY THE TERMS OF THIS DOCUMENT.
(Emphasis by italics added.)
Another section of the agreement, labeled “Acknowledgment & Assumption of Risks and Waiver of Claims for Minors,” states:
PLEASE READ CAREFULLY BEFORE SIGNING. THIS DOCUMENT INCLUDES A RELEASE OF LIABILITY AND WAIVER OF CERTAIN LEGAL RIGHTS.
. . . .
Acknowledgment of Risks
I understand there are numerous risks associated with participation in any camping activities, including . . . horseback riding . . . . Many, but not all of these risks are inherent in these and other activities. . . .
Equipment used in the activity may break, fail or [*5] malfunction, despite reasonable maintenance and use. Some of the equipment used in activities may inflict injuries even when used as intended. Persons using equipment may lose control of such equipment and cause injury to themselves and to others.
. . . .
Counselors and guides use their best judgment in determining how to react to circumstances including . . . animal character . . . . The counselors and guides may misjudge such circumstances, an individual’s capabilities and the like.
. . . .
These are some, but not all, of the risks inherent in camping activities; a complete listing of inherent and other risks is not possible. There are also risks which cannot be anticipated.
I give my permission for my child to participate in all camp activities, including those described above. I acknowledge and assume the risks involved in these activities, and for any damages, illness, injury or death . . . resulting from such risks for myself and my child.
(Emphasis by italics added.)
Before deciding whether the agreement adequately “informed” Hamill’s mother under section 13-22-107 regarding prospective negligence claims, we first address the validity of the agreement.
A. Validity of an Exculpatory [*6] Agreement Under Jones
[HN4] We analyze the validity of an exculpatory agreement, including those involving a minor child, by examining four factors: (1) the existence of a duty to the public; (2) the nature of the service performed; (3) whether the contract was fairly entered into; and (4) whether the intention of the parties is expressed in clear and unambiguous language. B & B Livery, Inc. v. Riehl, 960 P.2d 134, 136 (Colo. 1998) (citing Jones, 623 P.2d at 376).
1. First and Second Jones Factors: Duty and Nature of the Services
[HN5] The first Jones factor requires that we determine whether a duty to the public existed in the instant case. Jones, 623 P.2d at 376. Our supreme court has held that businesses engaged in recreational activities that are not practically necessary, such as equine activities, do not perform services implicating a public duty. Chadwick v. Colt Ross Outfitters, Inc., 100 P.3d 465, 469 (Colo. 2004).
[HN6] The second Jones factor examines the nature of the service performed. Jones, 623 P.2d at 376. Here, Cheley provided recreational camping services, including horseback riding. The services were “not a matter of practical necessity for even some members of the public,” because horseback [*7] riding is not “an essential service.” Jones, 623 P.2d at 377-78; see also Chadwick, 100 P.3d at 467; Day v. Snowmass Stables, Inc., 810 F. Supp. 289, 294 (D. Colo. 1993) (recreational equine services offered by the stable were not essential); cf. Stanley, 911 P.2d 705 (residential lease was matter of public interest, and exculpatory clause was void). The General Assembly’s enactment of section 13-21-119, C.R.S. 2010, limiting the civil liability of those involved in equine activities, underscores the fact that horseback riding is a matter of choice rather than necessity. Chadwick, 100 P.3d at 467-68.
2. Third Jones Factor: Fairness
[HN7] A contract is fairly entered into if one party is not so obviously disadvantaged with respect to bargaining power that the resulting contract essentially places him at the mercy of the other party’s negligence. Heil Valley Ranch, Inc., 784 P.2d at 784; accord Mincin v. Vail Holdings, Inc., 308 F.3d 1105, 1111 (10th Cir. 2002) (the second and third prongs of Jones inquire into the respective bargaining power of each party created by the “practical necessity” of the activity). Because horseback riding is not an essential activity, Hamill’s mother was not “at [*8] the mercy” of Cheley’s negligence when signing the agreement. See Chadwick, 100 P.3d at 469; see also Mincin, 308 F.3d at 1111 (because mountain biking was not an essential activity, no inferior bargaining power was identified); Day, 810 F. Supp. at 294 (defendants did not enjoy an unfair bargaining advantage in offering equine services).
By her own admission, Hamill’s mother voluntarily chose to sign the agreement expressly giving permission for Hamill to participate in horseback riding activities. Cf. Wycoff v. Grace Community Church, P.3d, (Colo. App. Nos. 09CA1151, 09CA1200 & 09CA1222, Dec. 9, 2010) (a waiver was insufficient to allow parents to assess the degree of risk involved and extent of possible injuries because it did not describe the activity that resulted in injury).
[HN8] In assessing fairness, courts may also examine whether the services provided could have been obtained elsewhere. See Jones, 623 P.2d at 375 (that a contract is offered on a “take-it-or-leave-it” basis does not, by itself, cause it to be an adhesion contract). The availability of other camps and other providers of horseback riding excursions is highlighted by Hamill’s mother’s deposition testimony [*9] that Hamill previously attended other camps. The record supports the district court’s conclusion that the agreement was entered into fairly.
3. Fourth Jones Factor: Intention of the Parties
Next, Hamill contends that the parties’ intention was not clearly stated in the agreement. Her claim that she only intended to release claims for “things that Cheley would have no control over” does not create a fact issue and is contradicted by the record.
[HN9] In reviewing a contract, we must enforce the plain meaning of the contract terms. USI Properties East, Inc. v. Simpson, 938 P.2d 168, 172 (Colo. 1997); B & B Livery, Inc., 960 P.2d at 136. We must also determine whether its terms are ambiguous, that is, susceptible of more than one reasonable interpretation. B & B Livery, Inc., 960 P.2d at 136. The parties’ disagreement over the meaning does not in and of itself create an ambiguity in the contract. Kuta v. Joint Dist. No. 50(J), 799 P.2d 379, 382 (Colo. 1990).
The language of the agreement here is unambiguous, and we give effect to its plain meaning. USI Properties East, Inc., 938 P.2d at 172; Kuta, 799 P.2d at 382 [HN10] (courts establish the meaning of a contract by examining the entire instrument as [*10] a whole, and not by viewing clauses or phrases in isolation).
Decisions of our supreme court also guide our examination of whether exculpatory agreements clearly evidence the parties’ intention. The Colorado Supreme Court enforced exculpatory agreements in B & B Livery, Inc. and Chadwick, which were similar to the agreement here, concluding that they clearly expressed the parties’ intent.
In B & B Livery, Inc., 960 P.2d 134, the plaintiff sued B & B to recover for injuries sustained when she fell from a rented horse. The plaintiff signed an exculpatory agreement containing the equine act’s mandatory release language warning that an equine professional is not liable for injury or death resulting from inherent risks of equine activities. See § 13-21-119(5)(b), C.R.S. 2010. The release also contained broad exculpatory language, releasing the company from “any liability in the event of any injury or damage of any nature (or perhaps even death) to [her] or anyone else caused by [her] electing to mount and then ride a horse owned or operated by B & B Livery, Inc.” B & B Livery, Inc., 960 P.2d at 135.
The plaintiff argued that the inclusion of this broad language created an ambiguity. Id. The [*11] supreme court disagreed, ruling that the agreement was written in simple and clear terms, it was not inordinately long, and the plaintiff admitted that she “really didn’t read” the release before she signed it, but was aware she was signing a release. Id. at 138 n.5. The supreme court held, based on the language of the agreement, “while we cannot be certain that if . . . [the plaintiff] had read and studied the agreement she would have signed it, there can be no dispute she intended to grant a general release to B & B.” Id. at 138.
In Chadwick, 100 P.3d 465, a participant in a back-country hunting trip sued the organizers of the trip when he was thrown off a mule and injured. Along with the equine act’s release language, the release also contained a “RELEASE FROM ANY LEGAL LIABILTY . . . for any injury or death caused by or resulting from [his] participation in the activities.” 100 P.3d at 468. In upholding the exculpatory agreement, the supreme court held that, while the agreement did not specifically include the word “negligence,” it nonetheless barred the plaintiff’s negligence claims. Id. The court reasoned that the release (1) was not inordinately long; (2) did not contain legal [*12] jargon; and (3) included the statutory release for inherent risks, but also included language releasing the defendant from “any legal liability.” Id. Therefore, the supreme court held the exculpatory language “cannot reasonably be understood as expressing anything other than an intent to release from ‘any’ liability for injuries ’caused by or resulting from'” the plaintiff’s participation in the activity. Id.
[HN11] In accordance with the public policy stated in section 13-21-119(4)(b), C.R.S. 2010, the supreme court held that parties may contract to release activity sponsors “even from negligent conduct, as long as the intent of the parties is clearly expressed in the contract.” Id.; see B & B Livery, Inc., 960 P.2d at 138.
As in Chadwick and B & B Livery, Inc., the agreement here is not inordinately long — three and a half pages. The legal jargon is minimal. Along with the statutory release language of section 13-21-119(5)(b), the agreement identifies many risks associated with camping activities, including horseback riding. The agreement, like that in Chadwick, broadly states an intent to release claims of liability for “any injury,” and like that in B & B Livery, Inc., it includes all degrees [*13] of potential injury, including the “death” of the participant. Hamill and both of her parents signed the agreement on April 27, 2004. Indeed, they also signed agreements containing the same language each of the two previous years.
The agreement covers “inherent and other risks,” noting that “[m]any, but not all, of these risks are inherent,” and stating that it is impossible to delineate a full list of risks, inherent or otherwise. Finally, the agreement repeatedly states that, by signing, Hamill’s mother agreed to release prospective claims against Cheley for “any legal liability,” “any injury,” and “any claim.” (Emphasis added by italics.) The agreement sufficiently placed Hamill’s mother on notice that the “[e]quipment used . . . may break, fail or malfunction” and that “counselors . . . may misjudge . . . circumstances.” The breadth of the release persuades us that the parties intended to disclaim legal liability for negligence claims. Indeed, misjudging a situation can amount to negligence. See Heil Valley Ranch, Inc., 784 P.2d at 781-82 [HN12] (valid exculpatory agreement need not invariably contain the word “negligence”).
To hold, as Hamill now argues, that the release did not provide [*14] greater protection than the release from liability of inherent risks provided by the equine act, section 13-21-119, would render large portions of the agreement meaningless. Heil Valley Ranch, Inc., 784 P.2d at 785 [HN13] (it is unreasonable to interpret an exculpatory agreement for an equine provider in such a way as to provide virtually no protection for the provider and render the release essentially meaningless); Chadwick, 100 P.3d at 469 (interpreting release provisions to be contingent upon satisfactory fulfillment by the provider of contractual obligations would render the release essentially meaningless). An agreement with such plain and unambiguous terms will not fail because one of the parties, in hindsight, now claims to have misunderstood the scope of that agreement — to govern only conduct outside of Cheley’s control — based on ambiguities not readily apparent within the four corners of the agreement.
Because the agreement did not implicate a public duty, did not involve an essential service, was fairly entered into, and it plainly expressed the intent to release prospective negligence claims, we hold that the agreement is valid.
B. Informed Consent Under Section 13-22-107
We next [*15] examine Hamill’s claim that her mother’s consent to release prospective negligence claims was not “informed,” as required by section 13-22-107, because she did not understand the scope of the agreement.
In 2002, the Colorado Supreme Court held that it was against public policy for parents to prospectively waive liability on behalf of minor children. Cooper v. Aspen Skiing Co., 48 P.3d 1229 (Colo. 2002). The following year, the General Assembly superseded Cooper by enacting [HN14] section 13-22-107(3), C.R.S. 2010, which allows parents to “release or waive the child’s prospective claim for negligence.” The statute declares “that parents have a fundamental right to make decisions on behalf of their children, including deciding whether the children should participate in risky activities.” Wycoff , P.3d at , 2010 Colo. App. LEXIS 1832 at *5; see § 13-22-107(1)(a)(I)-(V). The statute states that “[s]o long as the [parent’s] decision is voluntary and informed, the decision should be given the same dignity as decisions regarding schooling, medical treatment, and religious education.” § 13-22-107(1)(a)(V) (emphasis added). However, the statute does not allow a parent to waive a child’s prospective claim for “willful and wanton, [*16] . . . reckless, . . . [or] grossly negligent” acts or omissions. § 13-22-107(4), C.R.S. 2010; Wycoff, P.3d at , 2010 Colo. App. LEXIS 1832 at *6.
Relying on the “informed” language of the statute, Hamill asserts that Cheley’s failure to identify the possibility that she might fall from a horse in the manner she did invalidates her mother’s consent.
We assume that the General Assembly was aware of the Jones test when it enacted section 13-22-107(1)(a)(V), Vaughan v. McMinn, 945 P.2d 404, 408 (Colo. 1997), but required something more for the waiver of a minor’s prospective negligence claims. Wycoff, P.3d at , 2010 Colo. App. LEXIS 1832 at *46 (concluding that the statutory requirement to “inform” parents under section 13-22-107(1)(a)(V), requires something more than meeting the Jones factors). The General Assembly required that the consent to waiver by a parent be “voluntary and informed.” Wycoff, P.3d at , 2010 Colo. App. LEXIS 1832 at *6; Vigil v. Franklin, 103 P.3d 322, 327 (Colo. 2004); Boles v. Sun Ergoline, Inc., 223 P.3d 724, 725 (Colo. 2010) (noting that the supreme court invalidated an exculpatory agreement without regard to the Jones factors in Cooper, 48 P.3d at 1236). 2 A parent’s decision is informed when the parent has sufficient information to assess [*17] the potential degree of risks involved, and the extent of possible injury. Wycoff, P.3d at , 2010 Colo. App. LEXIS 1832 at *11; see also Black’s Law Dictionary 346 (9th ed. 2009) (defining “informed consent” as “agreement to allow something to happen, made with full knowledge of the risks involved and the alternatives”).
2 In Boles, our supreme court addressed the effectiveness of exculpatory agreements with regard to strict products liability. The supreme court cited Cooper for the proposition that the court may invalidate such agreements based on public policy considerations, without regard to the Jones test. However, we do not read Boles as invalidating the Jones test.
In Wycoff, a minor was injured while being pulled behind an ATV on an inner tube over a frozen lake. The mother did not know her child would engage in the activity. The exculpatory agreement the mother signed in advance made no reference to the activity. Wycoff, P.3d at , 2010 Colo. App. LEXIS 1832 at *10. Thus, the mother was unable to assess the risks, or the degree of possible injury, before signing the release. Id. Accordingly, a majority of the division in Wycoff found that release legally insufficient to bar the daughter’s personal injury claims. Id. The instant case [*18] is unlike Wycoff.
1. Degree of Risk
In contrast to Wycoff, the undisputed facts in the record show that Hamill’s mother knew the activities Cheley offered. Hamill had attended Cheley and ridden the camp horses for two years before the accident. The agreement clearly indicated that horseback riding was an activity available to campers. The agreement described many of the risks associated with horseback riding at camp, and notified Hamill’s mother that it was impossible to list all risks. See, e.g., Mallett v. Pirkey, 171 Colo. 271, 285, 466 P.2d 466, 473 (1970) (recognizing that while it is impossible for a physician to advise a patient of all conceivable risks, disclosure of substantial medical risks associated with surgical decision yields valid informed consent).
The agreement included language that informed Hamill’s mother that the equipment used by Cheley could fail and that the wranglers might “misjudge” situations. Both of these possibilities envision forms of negligence. As discussed above, the agreement itself directly contradicts Hamill’s mother’s objectively unreasonable interpretation of the contract that prospective negligence claims were not waived. See Crum v. April Corp., 62 P.3d 1039, 1041 (Colo. App. 2002) [*19] [HN15] (contracts generally will be interpreted to impose objectively reasonable standards, unless the contract involves matters of fancy or taste).
Hamill’s mother testified at her deposition that she voluntarily signed the release after having “skimmed” it. She had signed the same agreement in 2002 and 2003 and agreed that, by signing the waiver, she understood that she was accepting certain risks of injury to her child. See Rasmussen v. Freehling, 159 Colo. 414, 417, 412 P.2d 217, 219 (1966) [HN16] (if a person signs a contract without reading it, she is barred from claiming she is not bound by what it says); Day, 810 F. Supp. at 294 (a party signing a contract without reading it cannot deny knowledge of its contents, and is bound by what it says). She never contacted Cheley to discuss the release form, and had no questions about the language of the release form when she signed it. Hamill’s mother further agreed that “when you sign a document, you understand you’re agreeing to the terms in that document.” See B & B Livery, Inc., 960 P.2d at 141 (plaintiff admitted she had signed other releases in the past and was familiar with the fact that some activities required releases). Hamill’s mother admitted [*20] that the first time she had read through the agreement “thoroughly” was in her attorney’s office on June 2, 2009, well after the accident. Hamill’s mother’s signature communicated to Cheley that she had read and understood the terms of the contract and agreed to be bound by them.
That Hamill’s mother may not have contemplated the precise mechanics of her daughter’s fall does not invalidate the release and does not create a genuine issue of material fact. She knew her daughter would be riding horses and she was advised that there were risks, known and unknown, associated with the activity. Indeed, Hamill’s mother acknowledged in her deposition testimony that when horseback riding, there is “a risk of a child being thrown or falling off a horse.” Hamill’s argument that her mother did not give informed consent, despite her signature on the agreement and the language in the agreement indicating the contrary, is not persuasive and does not create a genuine issue of material fact. As a matter of law, the agreement sufficiently informed Hamill’s mother about the risks involved in horseback riding.
2. Extent of Injury
The broad release language in the agreement waiving “any claims of liability,” [*21] for “any injury,” even “death,” evidences that Hamill’s mother was informed that she was waving Hamill’s prospective claims, including negligence, and had sufficient information to assess the extent of possible injuries to Hamill. At her deposition, Hamill’s mother testified as follows:
Attorney: And, you know, you knew that someone such as Christopher Reeve had been tragically injured falling off a horse?
Ms. Hamill: Yes.
Attorney: Did you personally know Mr. Reeve?
Ms. Hamill: Yes.
Attorney: And so you were aware that there were significant risks associated with horseback riding?
Ms. Hamill: Yes.
Attorney: And you were aware that your daughter was going to be doing a significant amount of horseback riding?
Ms. Hamill: Yes.
The agreement did not need to include an exhaustive list of particularized injury scenarios to be effective.
Our review of the entire record leads us to conclude that there are no genuine issues of material fact. Hamill’s mother had more than sufficient information to allow her to assess the extent of injury possible in horseback riding, and to make an “informed” decision before signing the release. See Black’s Law Dictionary 346 (definition of informed consent).
We conclude [*22] that the agreement adequately disclosed the extent of potential injuries. Moreover, because the agreement was fairly entered into and the language clearly and unambiguously presents no genuine issue of material fact as to whether Hamill’s mother was informed of the agreement’s intent to release “all claims,” including prospective negligence claims, the district court did not err in granting summary judgment for Cheley.
IV. Public Policy
Hamill next argues that public policy considerations render the agreement invalid. According to Hamill, the General Assembly’s post-Cooper enactment of section 13-22-107 is in derogation of the common law, and, as such, the agreement must be strictly construed against Cheley. While we construe the agreement against Cheley because it is the party seeking to limit its liability, Heil Valley Ranch, 784 P.2d at 784, we cannot invalidate the agreement for public policy reasons.
[HN17] The General Assembly is the branch of government charged with implementing public policies. Crawford Rehabilitation Services, Inc. v. Weissman, 938 P.2d 540, 553 (Colo. 1997). The judiciary’s role is to recognize and enforce such implementation. Id. By enacting section 13-22-107(1)(b), [*23] the General Assembly expressly superseded Cooper, 48 P.3d 1229, and empowered parents to weigh the risks and benefits of their children’s activities. Appellate courts have a fundamental responsibility to “interpret statutes in a way that gives effect to the General Assembly’s intent in enacting that particular statute.” Carlson v. Ferris, 85 P.3d 504, 508 (Colo. 2003); accord People v. Luther, 58 P.3d 1013, 1015 (Colo. 2002). The General Assembly has the authority to abrogate the common law, as it did in enacting section 13-22-107(1)(b), which directly superseded Cooper, 48 P.3d 1229. See Vaughan, 945 P.2d at 408 (if the legislature wishes to abrogate rights otherwise available under the common law, it must manifest its intent either expressly or by clear implication).
The governing statute promotes children’s involvement in horseback riding and approves the informed release of prospective negligence claims. Thus, Hamill’s public policy argument is unavailing.
V. Gross Negligence
Finally, Hamill contends genuine issues of material fact exist regarding her gross negligence claim. We disagree.
Both parties concede that [HN18] exculpatory agreements are not a bar to civil liability for gross negligence. [*24] Jones, 623 P.2d at 376; Forman v. Brown, 944 P.2d 559, 564 (Colo. App. 1996). Gross negligence is willful and wanton conduct, that is, action committed recklessly, with conscious disregard for the safety of others. Forman, 944 P.2d at 564. Whether a defendant’s conduct is purposeful or reckless is ordinarily a question of fact; however, “if the record is devoid of sufficient evidence to raise a factual issue, then the question may be resolved by the court as a matter of law.” Id.
The record shows that a Cheley wrangler checked Hamill’s saddle two to three times before the ride. Hamill’s deposition testimony indicates that a wrangler assisted in saddling her horse. Consistent with Cheley’s standard procedure, the wrangler checked the saddle again before giving the camper permission to mount the horse. Hamill testified at deposition that once she was mounted, a Cheley wrangler asked her to dismount so the wrangler could, again, adjust the saddle and stirrups. Thus, the uncontradicted deposition testimony is that the saddle was properly cinched when the ride started and that the wranglers exercised care in making sure it was done appropriately. A Cheley wrangler on foot then led the riders [*25] on a path toward a riding ring while another wrangler followed. The wrangler leading the group stopped to check for traffic before allowing the campers and their horses to walk across the road to the ring. Hamill rode approximately 100 yards from where her saddle was last checked before she fell off the horse.
While Hamill asserts that the shape of the horse and its claimed propensity to bloat its stomach made saddle slippage more likely, she did not demonstrate that, before her accident, simply tightening the girth would not address the issue. There is no evidence that Cheley’s wrangler was “willfully” incompetent, purposefully caused the saddle to slip, or recklessly disregarded the appropriate way to tack the horse. Hamill’s mother testified that she thought “Cheley has the utmost care in what they do, but mistakes happen.” Under these circumstances, we perceive no genuine issue of material fact. Hence, the district court was correct in dismissing the gross negligence claim on summary judgment. 3
3 Because we find that the agreement barred Hamill’s negligence claims, we do not need to address, as the district court did, whether saddle slippage is an inherent risk of horseback riding [*26] that implicates the equine act.
The judgment is affirmed.
JUDGE CASEBOLT and JUDGE LOEB concur.
Minnesota decision upholds parent’s right to sign away a minor’s right to sue.
Posted: February 21, 2011 Filed under: Minors, Youth, Children, Release (pre-injury contract not to sue), Youth Camps | Tags: Baseball, Baseball Camp, Child, Coach, JimMoss, Minnesota, Minor, Outdoor recreation, Parental Responsibility, Parental Rights, Summer Camp Leave a commentCase was a baseball camp where the minor was injured during horseplay.
Moore vs. Minnesota Baseball Instructional School, 2009 Minn. App. Unpub. LEXIS 299
This is a pretty simple case. The defendants operated a baseball camp on the campus of the University of Minnesota. The plaintiff’s mother had signed her son up for the camp, online or electronically. On the last day after lunch a group of students went to the courtyard. The plaintiff sustained a permanent eye injury when they started throwing woodchips from the courtyard at each other.
The father sued on behalf of his son. The trial court, a district court in the opinion, granted the defendant’s motion for summary judgment. The father on his and his son behalf appealed.
The plaintiff first argued that the release, or assumption of the risk agreement as it was termed in the decision, should be “thrown out” because it could not be produced. Because the mother had signed online there was no signed document. On top of that, the system used by the defendant did not produce any document indicating who had signed what documents.
However, the defendant was able to show that the mother had signed other documents just like the release. A roster of those kids that had attended the camp that summer, with the injured minor’s name on it was produced. The camp through a director, also testified that if the mother had not signed the release, the minor would not have been allowed to attend the camp.
The mother’s deposition was also introduced. She could not deny filing out the forms online even though she did not remember the forms.
The plaintiff’s then argued that the language of the release did not cover the injury the minor sustained. The language only spoke to baseball and as such the release only covered injuries that the minor could have received playing baseball. Horsing around during free time therefore, was not covered by the release. The plaintiff also argued the language that excluded the claims; the release sentence was separate from the sentence that identified the risks. As such the release should be very narrowly construed.
Neither argument was accepted by the court. The court found that the release covered more than just baseball, and the release had to be read as a whole so the risk was incorporated into the exculpatory sentence.
The plaintiff then argued the exculpatory clause violated public policy. The court dismissed this argument. The court found that the baseball camp was not educational in nature. The training could be found through other sources and playing baseball was not essential or of great importance to members of the public.
So?
The rules of evidence have a procedure for admitting into trial documents that have been lost. The rule is based on procedure. The procedure to be allowed to go to a baseball camp required a parent to sign many documents. The child would not have been allowed at amp without signing all of the documents. A procedure was set up to show the mother had to have signed the release because her son was at the camp.
You should create a procedure for your business, camp or program. The best one I’ve seen for whitewater rafting was created by Mountain Waters Rafting. Guests were given their PFD’s (life jackets) when they handed in their releases. If a guest had on a PFD, the guest had signed a release.
The more you can identify a procedure that you used the same way every time, the easier to introduce a lost piece of paper.
Electronically, there can be several ways to make sure you can prove a person read and signed the release online. I first suggest you always tie a release into a credit card. The credit card company knows more about the holder of a credit card then you ever will. If the credit is accepted to pay for something on line, and the name on the release matches the name on the credit card you can prove the release was signed. If the trip or camp was paid for a release was signed.
You should also have a system that you are notified that each person has signed the documents. Create a way to download the information, name, address, etc. date and exact time the release was signed to your business computer and do so regularly. That information can be matched up, name, date and time to the credit card and payment used. Match this with your receipt of payment from the credit card company and you should have proof.
Make sure your release is written to cover all the risks of your program, business or activity. Here the language was broad enough the baseball program was covered for horseplay. How often do you feed guests, transport guests, and have guests just walking around that could be a chance to be injured. Your release needs to stop litigation, all types of litigation, not just what you face what you are selling to the public.
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