Pacific Cycle not liable for alleged defective skewer sold to plaintiff by Wal-Mart

To win a lawsuit you must have evidence to support your claim.

Burnett v. Pacific Cycle, Inc. 2007 U.S. Dist. LEXIS 55719

State: Tennessee, United States District Court for the Eastern District of Tennessee

Plaintiff: A.B. By Next Friend, Rachelle Burnett,

Defendant: Pacific Cycle, Inc. and Wal-Mart Stores East, L.P.,

Plaintiff Claims: Pacific was negligent in its design and manufacture of the bicycle, rendering the bicycle defective and unreasonably dangerous. Plaintiffs further allege that defendant Wal-Mart Stores East, L.P. was negligent in the assembly, marketing, distribution, and sale of the bicycle

Defendant Defenses: Motion to Dismiss for failure to state a claim

Holding: Case was dismissed

Year: 2007

This case concerns a Mongoose DXR bicycle manufactured by Pacific Cycle and sold by Wal-Mart in Tennessee. The bike was purchased fully assembled. The bike was ridden regularly by the minor plaintiff for the next four years. No maintenance was performed on the bike during that time.

The bike was equipped with a quick release. No one admitted ever opening or removing the quick release. While camping, the minor plaintiff was riding the bicycle when he suffered injuries to his face and head. The plaintiff did not remember the accident.

The defendants filed a motion for summary judgment, which was granted.

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

The case was brought under the Tennessee Product Liability Act. To prove a claim under the act the plaintiff “must prove that the product in question was “in a defective condition or unreasonably dangerous at the time, it left the control of the manufacturer or seller.” A defective condition is one that renders a product “unsafe for normal or anticipatable handling and consumption.”

An unreasonably dangerous product under the act is defined as:

…dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics, or that the product because of its dangerous condition would not be put on the market by a reasonably prudent manufacturer or seller, assuming that the manufacturer or seller knew of its dangerous condition.

Consequently, the plaintiff must show a product is defective or unreasonable dangerous. The defect or unreasonable dangerous condition was the proximate cause and the cause, in fact, for the injury to the plaintiff. A mere malfunction of the product does not create liability. Nor is an injury to the plaintiff alone sufficient to prove a case.

Because the plaintiff could not remember the accident, there was no proof that a defect caused the injury to him.

Plaintiffs have not established that the alleged defect or unreasonably dangerous condition of the Bicycle was the proximate cause or the cause, in fact, of the accident. A.B. admits that he cannot remember whether the Bicycle’s front wheel came off before the accident, which would effectively have caused the accident, or after the accident.

There was also expert testimony from the defendant’s expert who stated the accident was not caused by the quick release.

So Now What?

This is a simple case that analysis the product liability requirements necessary to prove a case in Tennessee. The pivotal issue was no one saw the accident nor was the plaintiff able to remember the accident.

On top of that the plaintiff did not hire an expert witness to support or prove its claims. Consequently, the only evidence from an expert the court had in front of it was from the defendant’s expert.

No evidence to prove the case in front of the court, the court must rule for the defendant.

What do you think? Leave a comment.

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

Copyright 2015 Recreation Law (720) Edit Law

Email: Rec-law@recreation-law.com

Google+: +Recreation

Twitter: RecreationLaw

Facebook: Rec.Law.Now

Facebook Page: Outdoor Recreation & Adventure Travel Law

Blog: www.recreation-law.com

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

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

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

 


Burnett v. Pacific Cycle, Inc. 2007 U.S. Dist. LEXIS 55719

Burnett v. Pacific Cycle, Inc. 2007 U.S. Dist. LEXIS 55719

A.B. By Next Friend, Rachelle Burnett, Plaintiffs, v. Pacific Cycle, Inc. and Wal-Mart Stores East, L.P., Defendants.

No.: 3:06-CV-266

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TENNESSEE

2007 U.S. Dist. LEXIS 55719

July 31, 2007, Filed

CORE TERMS: bicycle, summary judgment, dangerous condition, unreasonably dangerous, front wheel, manufacturer, unreasonably, remember, genuine, seller, campground, products liability, rode, matter of law, defective condition, entitled to judgment, genuine issue, issue of material fact, moving party, burden of proof, proximate cause, manufacture, deposition, non-moving, marketing, favorable, assembly, consumer, hearsay, wheel

COUNSEL: [*1] For A.B., next friend Rachelle Burnett, Plaintiff: Lori L Jessee, LEAD ATTORNEY, Bacon, Jessee & Perkins, Morristown, TN; Sidney W Gilreath, Timothy A Housholder, LEAD ATTORNEYS, Gilreath & Associates, PC, Knoxville, TN.

For Pacific Cycle, Inc., Wal-Mart Stores East, L.P., Defendants: Travis J Graham, LEAD ATTORNEY, Gentry, Locke, Rakes & Moore, LLP, Roanoke, VA.

JUDGES: Thomas A. Varlan, UNITED STATES DISTRICT JUDGE.

OPINION BY: Thomas A. Varlan

OPINION

MEMORANDUM OPINION

This civil action is before the Court on the defendants’ Motion for Summary Judgment [Doc. 12]. Plaintiffs, A.B. and next friend Rachelle Burnett (“Plaintiffs”), claim that A.B. was injured in a bicycle accident because of the negligence of the defendants. [Doc. 1] Specifically, Plaintiffs allege that defendant Pacific Cycle, Inc. (“Pacific”) was negligent in its design and manufacture of the bicycle, rendering the bicycle defective and unreasonably dangerous. [Id. at PP 9-13] Plaintiffs further allege that defendant Wal-Mart Stores East, L.P. (“Wal-Mart”) was negligent in the assembly, marketing, distribution, and sale of the bicycle in question. [Id. at PP 14-16] In their motion for summary judgment, the defendants argue that, pursuant to Fed. R. Civ. P. 56, [*2] they are entitled to judgment as a matter of law because Plaintiffs cannot prove that the bicycle was defective or unreasonably dangerous, nor can they prove that A.B.’s injury was caused by the alleged defect. Plaintiffs have not responded to the instant motion and the time for doing so has passed. See L.R. 7.1(a), 7.2.

The Court has carefully reviewed the pending motion, along with the supporting brief in light of the entire record and controlling law. For the reasons set forth herein, the defendants’ motion for summary judgment will be granted.

I. Relevant Facts

In approximately December, 2000, Plaintiffs purchased a Mongoose DXR / MGX mountain bike (the “Bicycle”) from the Jefferson City, Tennessee Wal-Mart. [Doc. 1 at P 5] The Bicycle was fully assembled when purchased. [Doc. 13, Attachment 2 at p. 3] The Bicycle’s front wheel was equipped with a quick release mechanism which allows the front wheel to be detached. [Doc. 1 at P 8] Plaintiffs never manually removed the front wheel from the Bicycle. [Doc. 13, Attachment 2 at p. 3, 5] Other than simple maintenance, including inflating the tires and oiling the chain, no work was ever performed on the Bicycle while in Plaintiffs’ possession. [*3] [Id. at p. 4]

A.B. rode the Bicycle frequently in the following years, varying from once a week to once every few days. [Doc. 13, Attachment 4 at p. 5] A.B. normally only rode the Bicycle in Plaintiffs’ driveway, yard, and at a nearby church. [Id. at p. 4] In June, 2004, Plaintiffs went on a camping trip and brought the Bicycle. [Doc. 13, Attachment 3 at p. 6] The Bicycle was transported to the campground in the back of Plaintiffs’ truck. [Id.] The wheels were not removed while the Bicycle was in transit to the campground. [Id.] Plaintiffs arrived at the campground on the afternoon of June 24, 2004. [Id.] A.B. did not ride his bicycle on June 24, 2004, but did ride it some on June 25, 2004 with no difficulty. [Id.] On June 26, 2004, A.B. again rode his bicycle around the campground, but this time had an accident and sustained a severe injuries to his face and head. [Id.] A.B. remembers “riding [the Bicycle] back to the campsite, and then . . . looking over and seeing this big family, and then everything went black.” [Doc. 13, Attachment 4 at p. 7] A.B. does not remember how the accident happened. [Id.] The accident was witnessed by an unknown camper [Id. at p. 8], but there is no evidence [*4] of record that the unknown camper has ever been identified. At the time of the accident, A.B. was just riding along on a smooth, gravel road, and was not trying to perform any tricks. [Id. at p. 10] A.B. does not remember whether the front wheel of the Bicycle came off before or after the accident. [Id.]

II. Standard of Review

Under Fed. R. Civ. P. 56(c), summary judgment is proper if “the pleadings, depositions, answers to interrogatories, admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.” The burden of establishing there is no genuine issue of material fact lies upon the moving party. Celotex Corp. v. Catrett, 477 U.S. 317, 330 n.2, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). The court must view the facts and all inferences to be drawn therefrom in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986); Burchett v. Kiefer, 310 F.3d 937, 942 (6th Cir. 2002). To establish a genuine issue as to the existence of a particular element, the non-moving party must point to evidence in the record upon which a reasonable jury could [*5] find in its favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). The genuine issue must also be material; that is, it must involve facts that might affect the outcome of the suit under the governing law. Id.

The judge’s function at the point of summary judgment is limited to determining whether sufficient evidence has been presented to make the issue of fact a proper jury question, and not to weigh the evidence, judge the credibility of witnesses, and determine the truth of the matter. Id. at 249. Thus, “[t]he inquiry performed is the threshold inquiry of determining whether there is the need for trial — whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.” Id. at 250.

III. Tennessee Product Liability Act

Plaintiffs claim that Pacific was negligent in the design, manufacture, and sale of the Bicycle and caused the Bicycle to be in a defective or unreasonably dangerous condition at the time of the sale in violation of the Tennessee Product Liability Act (“TPLA”). Plaintiffs further allege that Wal-Mart was negligent in the assembly, marketing, [*6] distribution, and sale of the Bicycle and caused the Bicycle to be in a defective or unreasonably dangerous condition at the time of the sale in violation of the TPLA.

In order to recover against a manufacturer or seller under the TPLA, a plaintiff must prove that the product in question was “in a defective condition or unreasonably dangerous at the time it left the control of the manufacturer or seller.” Tenn. Code Ann. § 29-28-105(a). The TPLA defines a “defective” condition as “a condition of a product that renders it unsafe for normal or anticipatable handling and consumption.” Tenn. Code Ann. § 29-28-102(2). The TPLA defines “unreasonably dangerous” as a product

dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics, or that the product because of its dangerous condition would not be put on the market by a reasonably prudent manufacturer or seller, assuming that the manufacturer or seller knew of its dangerous condition.

Tenn. Code Ann. § 29-28-102(8). “These statutory definitions essentially codify the ‘consumer expectation test’ as the basis in Tennessee [*7] for assessing products liability.” Tatum v. Cordis Corp., 758 F. Supp. 457, 461 (M.D. Tenn. 1991).

“Thus, regardless of the theory, the plaintiff must show that something is wrong with a product that makes it defective or unreasonably dangerous.” Bradley v. Danek Medical, Inc., No. 96-3121, 1999 U.S. Dist. LEXIS 6449, at *25 (W.D. Tenn. Mar. 29, 1999) (citations omitted). Additionally, the plaintiff must show that the alleged defect or unreasonably dangerous condition of the product was both the proximate cause and the cause in fact of the plaintiff’s injury. Pride v. BIC Corp., 218 F.3d 566, 580 (6th Cir. 2000). “[A] device failure or malfunction will not, without more, render a manufacturer liable.” Bradley, 1999 U.S. Dist. LEXIS 6449, at *25 (citing Harwell v. American Medical Sys., Inc., 803 F. Supp. 1287, 1298 (M.D. Tenn. 1992)). “Moreover, the fact that plaintiff was injured is not proof of defect.” Id. (citing Fulton v. Pfizer Hosp. Products Group, Inc., 872 S.W.2d 908, 911 (Tenn. Ct. App. 1993).

In the instant case, Plaintiffs have presented no proof in support of their claims, instead relying solely on their complaint. The plaintiffs’ complaint, even if accepted as true for [*8] purposes of summary judgment, consists of allegations which are not acceptable proof under Rule 56. Mere notice pleading is not sufficient to defeat a well-pled summary judgment motion. See Garth v. University of Kentucky Medical Center, No. 92-5177, 1992 U.S. App. LEXIS 14677, at *3-4 (6th Cir. June 16, 1992) (“To survive a motion for summary judgment, [the plaintiff] was required to do more than rest on her pleadings; she was required to demonstrate that a genuine issue for trial existed.”); Teamsters Local Union No. 486 v. Andersen Sand and Gravel Co., No. 82-1124, 711 F.2d 1059, 1983 U.S. App. LEXIS 13044, at *6 (6th Cir. May 11, 1983) (“Where the district court has afforded a party opposing summary judgment under Rule 56 an opportunity to set forth specific facts showing there is a genuinely disputed factual issue for trial and that opportunity has been ignored, summary judgment is appropriate if the movant has carried his burden of proof.”). After reviewing the record in the light most favorable to Plaintiffs, the Court finds that Plaintiffs have failed to carry their burden and that the defendants’ motion for summary judgment should be granted.

Plaintiffs have not established that the alleged [*9] defect or unreasonably dangerous condition of the Bicycle was the proximate cause or the cause in fact of the accident. A.B. admits that he can not remember whether the Bicycle’s front wheel came off before the accident, which would effectively have caused the accident, or after the accident. [Doc. 13, Attachment 4 at p. 10] Nor is there any other evidence of record as to the cause of the accident. The Court notes that Ms. Burnett did indicate during her deposition that A.B. “told me before that he remembered the wheel coming off and it going forward,” but that testimony is inadmissible hearsay and not based upon Ms. Burnett’s own personal knowledge. Jacklyn v. Schering-Plough Healthcare Prods. Sales Corp., 176 F.3d 921, 927 (6th Cir. 1999) (“hearsay evidence may not be considered on summary judgment”).

In contrast, the defendants have presented expert testimony proving that the accident was not caused by quick release mechanism on the Bicycle’s front tire and that the Bicycle was not defective nor unreasonably dangerous. [Doc. 13, Attachment 3] Accordingly, the Court finds that Plaintiffs have not carried their burden of proof with respect to identifying a defect or dangerous condition [*10] of the Bicycle and showing that the defect or dangerous condition was the proximate cause and the cause in fact of the plaintiff’s injury, and thus defendants’ motion for summary judgment will be granted.

IV. Conclusion

For the reasons set forth herein, the defendants’ motion for summary judgment [Doc. 12] will be GRANTED and Plaintiffs’ claims will be DISMISSED with prejudice.

ORDER ACCORDINGLY.

s/ Thomas A. Varlan

UNITED STATES DISTRICT JUDGE


75 Ft waterfall, middle of the night, no lights and a BAC of .18% results in two fatalities and one lawsuit. However, facts that created fatalities were the defense.

Tennessee’s duty to protect its citizens more than its duty to safety to invitees to its state parks is refreshing.

Morgan v. State of Tennessee, 2004 Tenn. App. LEXIS 62

State: Tennessee Court of Appeals

Plaintiff: Evelean Morgan

Defendant: State of Tennessee

Plaintiff Claims: negligently creating or maintaining a dangerous condition at Colditz Cove State Natural Area

Defendant Defenses: (1) Tennessee recreational use statute Tenn. Code Ann. § 70-7-102 (1995), (2) lack of actual or constructive notice of a dangerous condition, and (3) assertion that the decedent’s fault exceeded its own

Holding: For the Defendant State of Tennessee

Year: 2004

After the local bars closed the deceased and several friends went to a local state park to continue talking and drinking. The park was created because of the rock formations and the 75’ Northrup Falls. After taking and drinking in the parking lot, several members of the group decided to walk to the falls. The trail was primitive with no lights. One member of the group of five had a flashlight.

At a Y in the trail, two members of the group sat down to talk. The remaining three continued to walk. At one point, one person went into the bushes to pee and fell over the cliff on his way back. One member of the group sitting at the Y came down to assist. Later that same person decided to go for help, taking the flashlight with him.

The two remaining parties tried to start a fire to no avail. Eventually, the deceased, the daughter of the plaintiff in this lawsuit, also fell over the cliff. Approximately, an hour later rescue workers found the deceased floating in the water at the base of the falls. The deceased, the subject to this lawsuit had a blood-alcohol content of .18%

The mother of the deceased, the plaintiff, sued the State of Tennessee because the falls were a state park. In Tennessee this means filing a claim with the Tennessee Claims Commission. The claims commission commissioner reviewed the motions and granted the State of Tennessee’s motion for summary judgment. The plaintiff appealed. The commissioner’s decision was not based on the Tennessee Recreational Use Act but was based on the state’s defense of “(2) its lack of actual or constructive notice of a dangerous condition, and (3) its assertion that the decedent’s fault exceeded its own

Several states employ a separate state agency to handle claims against the state. The commissioner or judge hearing the claims is usually an attorney, called an administrative law judge. These judges operate with a separate set of rules of civil procedure and sometimes rules of evidence. The entire procedure is controlled by the statute that outlines how the state may be sued.

Summary of the case

The appellate court first looked at the Tennessee Recreation Use Act to see if it applied to this case. For the plaintiff to defeat the recreational use act, she must:

(1) prove that the defendant is not a “landowner,” (2) prove that the injured party was not engaged in a recreational activity, or (3) prove that the landowner’s conduct fits within one of the three exceptions in Tenn. Code Ann. § 70-7-104.

The court quickly determined that Tennessee was a landowner and that hiking and/or sightseeing (at night) was a recreational activity. The third issue was whether an exception to the act applied to the case. The sole exception argued by the plaintiff was the actions of the state were gross negligence.

Under Tennessee’s law, gross negligence is defined as:

… negligent conduct reflecting a reckless disregard for the safety of others. It does not require a particular state of mind as long as it creates an extremely unjustified risk to others. It differs from ordinary negligence only in degree, not in kind. Thus, gross negligence is a negligent act or failure to act that reflects more than lack of ordinary care (simple negligence) but less than intentional misconduct.

Ordinarily, the determination of whether a defendant’s actions were gross negligence is a factual determination, which can only be done by the trier of fact or a jury. However, if the facts are not in dispute and conclusions reasonable drawn from the facts would only lead to one conclusion; a court can determine if the acts rose to the level of gross negligence.

We find no evidence in this record upon which a reasonable person would conclude that the State was grossly negligent with regard to the construction or maintenance of the Colditz Cove State Natural Area.

The court then made a statement that places Tennessee in the minority, that the protection of the natural area in this case takes precedence over the safety issues.

The State had a statutory obligation to maintain this area in a pristine, natural condition. Erecting warning signs, installing lighting along the trails, fencing the entire area, or installing guard rails, barriers, or other sorts of buffers, while perhaps appropriate at Dollywood, would have been entirely unwarranted and unnecessary for a natural area such as Colditz Cove.

The court held that the recreational use act applied, and the plaintiff had not raised any defenses to its application.

The court then looked at the second issue, whether the state met the ordinary reasonable person standard of care for a landowner.

The State is not the insurer of the safety of persons on its property. It is, however, liable to these persons to the same extent that private owners and occupiers of land are liable, because Tenn. Code Ann. § 9-8-307(a)(1)(C) has imposed this common-law duty on the State. Tenn. Code Ann. § 9-8-307(a)(1)(C) provides that the State may be held monetarily liable for negligently created or maintained dangerous conditions on state controlled real property.

The state, as a landowner, has a duty to exercise reasonable care to prevent foreseeable injuries to persons on the premises. To prevail, the plaintiff must prove the actions leading to the fatality were a reasonably foreseeable probability. The court found this had not been proven.

The record contains no factual, legal, or policy basis for concluding that the State should have foreseen that intoxicated persons that were unfamiliar with the Colditz Cove State Natural Area would hike down the trail to Northrup Falls in the middle of the night without adequate illumination.

The final argument made by the plaintiff was the state’s gross negligence was greater than the negligence of the deceased. Having found the state was not grossly negligent, this argument also failed.

Ms. Zegilla’s [deceased] voluntary intoxication on the evening of July 26, 1997 does not relieve her from the responsibility of her own negligence. She was required to use reasonable care under the circumstances, and her conduct must be measured against the conduct of an ordinary, reasonable person rather than an ordinary and reasonable intoxicated person. Accordingly, if her conduct while intoxicated was a proximate cause of her death, it may be compared with the fault of the other parties whose fault was also a proximate cause.

It cannot be reasonably disputed that Ms. Zegilla was intoxicated when she arrived at Colditz Cove State Natural Area after midnight on July 26, 1997. Even though she had never visited the natural area before, she decided to venture into a wooded area down an unfamiliar, rough foot path in the dark. After one of her companions fell to his death, she continued to walk around in the darkness even though she must have known that danger was close at hand. As tragic as her death is, the only conclusion that reasonable persons can draw from these facts is that her fault far exceeded any fault that may reasonably be attributed to the State.

The plaintiff failed to make any arguments that the state could be held liable for the death of her daughter.

So Now What?

State statutes that outline the procedures for a claim against a state are so varied; it is difficult to rely on any decision on this issue. Similar arguments can be made when reviewing a state’s Recreational Use Statute.

However, here, the State of Tennessee did nothing to cause injury to the deceased. More importantly for future generations, the state does not have to destroy its natural areas to prevent drunks walking around parks at night from getting hurt.

What do you think? Leave a comment.

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

Copyright 2014 Recreation Law (720) Edit Law

Email: Rec-law@recreation-law.com

Google+: +Recreation

Twitter: RecreationLaw

Facebook: Rec.Law.Now

Facebook Page: Outdoor Recreation & Adventure Travel Law

Blog: www.recreation-law.com

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

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

<rel=”author” link=” https://plus.google.com/u/0/b/112453188060350225356/” />

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

 


Morgan v. State of Tennessee, 2004 Tenn. App. LEXIS 62

Morgan v. State of Tennessee, 2004 Tenn. App. LEXIS 62

Evelean Morgan v. State of Tennessee

No. M2002-02496-COA-R3-CV

COURT OF APPEALS OF TENNESSEE, AT NASHVILLE

2004 Tenn. App. LEXIS 62

November 3, 2003, Session

January 27, 2004, Filed

PRIOR HISTORY: [*1] Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Claims Commission Affirmed. Appeal from the Tennessee Claims Commission No. 99000125 W. R. Baker, Commissioner.

DISPOSITION: Affirmed and remanded.

COUNSEL: David H. Dunaway, LaFollette, Tennessee, for the appellant, Evelean Morgan.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; and Christopher Michael Fancher, Assistant Attorney General, for the appellee, State of Tennessee.

JUDGES: WILLIAM C. KOCH, JR., P.J., M.S., delivered the opinion of the court, in which WILLIAM B. CAIN and PATRICIA J. COTTRELL, JJ., joined.

OPINION BY: WILLIAM C. KOCH, JR., P.J., M.S.

OPINION

This appeal involves a fatal accident at the Colditz Cove State Natural Area in Fentress County. The mother of a woman who fell to her death from the bluff surrounding Northrup Falls filed a claim with the Tennessee Claims Commission. The State of Tennessee denied liability based on (1) the recreational use defense in Tenn. Code Ann. § 70-7-102 (1995), (2) its lack of actual or constructive notice of a dangerous condition, and (3) its assertion that the decedent’s fault exceeded its own. The commissioner granted the State’s motion for summary judgment. [*2] While he did not rely on the statutory recreational use defense, the commissioner determined that the State had no notice of a dangerous condition at the natural area, it was not reasonably foreseeable that intoxicated persons who were unfamiliar with the natural area would hike into the area of the falls in the middle of the night, and the decedent’s actions were the sole proximate cause of her death. The decedent’s mother has appealed. We have determined that the commissioner properly granted the summary judgment because, as a matter of law, (1) the State established a defense under Tenn. Code Ann. § 70-7-102, (2) the decedent’s estate presented no evidence that the State had actual or constructive notice of an allegedly dangerous condition on the trail in the natural area, and (3) the decedent’s fault far exceeded whatever fault could be attributed to the State.

I.

Rochelle Copeland Zegilla and her two small children were living with her mother in mid-1997 following a separation from her husband. On Saturday evening, July 26, 1997, she told her mother that she was “going to go out for awhile,” and then she drove to the Top of the Mountain Lounge in [*3] Jamestown, Tennessee. After the lounge closed at midnight, Ms. Zegilla and four companions 1 decided to drive to a nearby VFW club. When they arrived at the club, however, they discovered that it had closed earlier than usual. After a brief discussion in the club parking lot, the group decided to continue their drinking and talking in the parking lot of the Colditz Cove State Natural Area.

1 Ms. Zegilla’s companions at the Top of the Mountain Lounge were Chris Smith, Loretta Johnson, Edward Raines, and Larry King.

The Colditz Cove State Natural Area is a 165-acre Class II natural-scientific area in Fentress County owned by the State of Tennessee. It is heavily wooded and contains the 75-foot Northrup Falls and a scenic gorge with interesting rock formations. 2 The area has been designated by statute as “worthy of perpetual preservation,” 3 and accordingly, improvements to the area are limited to foot trails, foot bridges, and primitive campgrounds 4 and “facilities as may be reasonably necessary . . .for [*4] the safe and proper management and protection of the area.” 5 In addition to a parking lot, the State had erected several signs and a gate and had constructed a 1.5 mile foot trail along the bluff overlooking Northrup Falls, as well as a scenic overlook. The State had not installed lights in the parking lot or along the foot trail.

2 Tenn. Code Ann. § 11-14-108(b)(2)(F) (Supp. 2003).

3 Tenn. Code Ann. § 11-14-105(2) (1999).

4 Tenn. Code Ann. § 11-14-106(a)(1)(B) (1999).

5 Tenn. Code Ann. § 11-14-106(a)(2).

All of the group except Mr. Raines had been drinking throughout the evening, and they continued drinking in the parking lot because Messrs. Smith and King had brought along a cooler of beer purchased earlier in the evening at Midway Qwick Stop. After talking for several minutes, the group decided to walk down the foot trail toward Northrup Falls in the pitch dark even though [*5] three of them, including Ms. Zegilla, had never been to Colditz Cove before. The only illumination they had was Mr. King’s flashlight.

When the group reached a fork in the trail, Mr. Raines and Ms. Johnson decided to walk no further and sat near a trash container to talk and drink. Ms. Zegilla and Messrs. Smith and King kept walking along the trail toward Northrup Falls. After they stopped to drink and talk, Mr. King asked Mr. Smith to shine the flashlight into the bushes to enable him to find a place to urinate. Mr. King walked into the bushes and, on his return, he fell over the bluff into the gorge below.

Mr. Smith yelled, “Larry has fallen off,” and called to Mr. Raines for assistance. Mr. Raines made his way down the trail to Mr. Smith and Ms. Zegilla. After they all called out to Mr. King to no avail, Mr. Raines decided to go for help and took the flashlight to help make his way back up the foot path to the parking lot. Ms. Zegilla and Mr. Smith, now joined by Ms. Johnson, continued to call for Mr. King. Mr. Smith decided to start a fire with his shirt to make some light. After his shirt went out, Ms. Zegilla somehow fell over the bluff. The rescue workers who arrived at the [*6] scene at approximately 1:30 a.m. on Sunday, July 27, 1997, found the lifeless bodies of both Mr. King and Ms. Zegilla in the water at the bottom of the falls. An autopsy revealed that Ms. Zegilla’s blood alcohol level was .18%.

On July 23, 1998, Evelean Morgan, Ms. Zegilla’s mother and her personal representative, filed a claim for $ 500,000 with the Tennessee Claims Commission asserting that the State had violated Tenn. Code Ann. § 9-8-307(a)(1)(C) (Supp. 2003) by negligently creating or maintaining a dangerous condition at Colditz Cove State Natural Area. 6 The State moved to dismiss the claim on the ground that it was shielded from liability by the recreational use statute [Tenn. Code Ann. §§ 70-7-101, -105 (1995)]. After the claims commissioner denied its motion, the State filed an answer denying Ms. Morgan’s negligence claims. The State asserted, as affirmative defenses, (1) that Tenn. Code Ann. § 70-7-102 shielded it from liability, (2) that it had no actual or constructive notice of a dangerous condition at Colditz Cove State Natural Area and that it was not reasonably foreseeable that intoxicated [*7] persons who were unfamiliar with the natural area would hike into the area of the falls in the middle of the night, and (3) that Ms. Zegilla’s own negligence “contributed in excess of 50% to the cause of her death.”

6 Ms. Morgan also filed a civil damage action in the Circuit Court for Fentress County against Ms. Johnson, Messrs. Smith and Raines, and the estate of Mr. King.

In February 2002, following lengthy and somewhat contentious discovery, the State moved for a summary judgment on two grounds – Tenn. Code Ann. § 70-7-102 and its assertion that Ms. Zegilla’s “negligence was equal to or greater than [the] negligence of the State, if any.” 7 In April 2002, Ms. Morgan responded by asserting that the State was not entitled to a judgment on either ground because the State was grossly negligent and because its negligence was greater than Ms. Zegilla’s. The claims commissioner held a hearing on the State’s motion for summary judgment after conducting his own personal inspection of [*8] the Colditz Cove State Natural Area without the lawyers or parties present. On June 5, 2002, the commissioner filed an order granting the State’s motion for summary judgment. While the commissioner declined to base his decision on Tenn. Code Ann. § 70-7-102, he determined that the undisputed evidence demonstrated as a matter of law that Ms. Morgan had not shown that she could prove notice and foreseeability as required by Tenn. Code Ann. § 9-8-307(a)(1)(C) and that Ms. Zegilla was “preponderantly negligent in her own death.” 8 The commissioner later denied Ms. Morgan’s request for a hearing before the entire claims commission. Ms. Morgan has appealed.

7 The State based the latter assertion on what it called the “step in the dark” rule, i.e., that stepping into an unfamiliar dark area constitutes the proximate cause of injuries sustained by falling down stairs hidden in the darkness. Eaton v. McLain, 891 S.W.2d 587, 594 (Tenn. 1994); Goodman v. Memphis Park Comm’n, 851 S.W.2d 165, 171 (Tenn. Ct. App. 1992).

[*9]

8 We construe this finding to be that Ms. Zegilla’s fault exceeded the fault of the State, if any. The claims commissioner stated later in its order that “the sole proximate cause of Ms. Zegilla’s death was her own actions.”

II.

THE STANDARD OF REVIEW

The standards for reviewing summary judgments on appeal are well-settled. [HN1] Summary judgments are proper in virtually any civil case that can be resolved on the basis of legal issues alone. Fruge v. Doe, 952 S.W.2d 408, 410 (Tenn. 1997); Byrd v. Hall, 847 S.W.2d 208, 210 (Tenn. 1993); Pendleton v. Mills, 73 S.W.3d 115, 121 (Tenn. Ct. App. 2001). They are not, however, appropriate when genuine disputes regarding material facts exist. Tenn. R. Civ. P. 56.04. Thus, a summary judgment should be granted only when the undisputed facts, and the inferences reasonably drawn from the undisputed facts, support one conclusion – that the party seeking the summary judgment is entitled to a judgment as a matter of law. Pero’s Steak & Spaghetti House v. Lee, 90 S.W.3d 614, 620 (Tenn. 2002); [*10] Webber v. State Farm Mut. Auto. Ins. Co., 49 S.W.3d 265, 269 (Tenn. 2001).

[HN2] The party seeking a summary judgment bears the burden of demonstrating that no genuine dispute of material fact exists and that it is entitled to a judgment as a matter of law. Godfrey v. Ruiz, 90 S.W.3d 692, 695 (Tenn. 2002); Shadrick v. Coker, 963 S.W.2d 726, 731 (Tenn. 1998). To be entitled to a judgment as a matter of law, the moving party must either affirmatively negate an essential element of the non-moving party’s claim or establish an affirmative defense that conclusively defeats the non-moving party’s claim. Byrd v. Hall, 847 S.W.2d at 215 n. 5; Cherry v. Williams, 36 S.W.3d 78, 82-83 (Tenn. Ct. App. 2000).

[HN3] Once the moving party demonstrates that it has satisfied Tenn. R. Civ. P. 56’s requirements, the non-moving party must demonstrate how these requirements have not been satisfied. Bain v. Wells, 936 S.W.2d 618, 622 (Tenn. 1997). Mere conclusory generalizations will not suffice. Cawood v. Davis, 680 S.W.2d 795, 796-97 (Tenn. Ct. App. 1984). The non-moving party must convince the [*11] trial court that there are sufficient factual disputes to warrant a trial (1) by pointing to evidence either overlooked or ignored by the moving party that creates a factual dispute, (2) by rehabilitating evidence challenged by the moving party, (3) by producing additional evidence that creates a material factual dispute, or (4) by submitting an affidavit in accordance with Tenn. R. Civ. P. 56.07 requesting additional time for discovery. McCarley v. West Quality Food Serv., 960 S.W.2d 585, 588 (Tenn. 1998); Byrd v. Hall, 847 S.W.2d at 215 n. 6. A non-moving party who fails to carry its burden faces summary dismissal of the challenged claim because, as our courts have repeatedly observed, the “failure of proof concerning an essential element of the cause of action necessarily renders all other facts immaterial.” Alexander v. Memphis Individual Practice Ass’n, 870 S.W.2d 278, 280 (Tenn. 1993).

[HN4] A summary judgment is not appropriate when a case’s determinative facts are in dispute. However, for a question of fact to exist, reasonable minds must be able to differ over whether some alleged occurrence or event did or did not happen. Conatser v. Clarksville Coca-Cola Bottling Co., 920 S.W.2d 646, 647 (Tenn. 1995); [*12] Harrison v. Southern Ry. Co., 31 Tenn. App. 377, 387, 215 S.W.2d 31, 35 (1948). If reasonable minds could justifiably reach different conclusions based on the evidence at hand, then a genuine question of fact exists. Louis Dreyfus Corp. v. Austin Co., 868 S.W.2d 649, 656 (Tenn. Ct. App. 1993). If, on the other hand, the evidence and the inferences to be reasonably drawn from the evidence would permit a reasonable person to reach only one conclusion, then there are no material factual disputes and the question can be disposed of as a matter of law. Godfrey v. Ruiz, 90 S.W.3d at 695; Seavers v. Methodist Med. Ctr., 9 S.W.3d 86, 91 (Tenn. 1999); Beaudreau v. General Motors Acceptance Corp., 118 S.W.3d 700, 703 (Tenn. Ct. App. 2003).

[HN5] Summary judgments enjoy no presumption of correctness on appeal. BellSouth Advertising & Publ’g Co. v. Johnson, 100 S.W.3d 202, 205 (Tenn. 2003); Scott v. Ashland Healthcare Ctr., Inc., 49 S.W.3d 281, 285 (Tenn. 2001). Accordingly, appellate courts must make a fresh determination that the requirements of Tenn. R. Civ. P. 56 have been satisfied. [*13] Hunter v. Brown, 955 S.W.2d 49, 50-51 (Tenn. 1997). We must consider the evidence in the light most favorable to the non-moving party, and we must resolve all inferences in the non-moving party’s favor. Godfrey v. Ruiz, 90 S.W.3d at 695; Doe v. HCA Health Servs., Inc., 46 S.W.3d 191, 196 (Tenn. 2001). When reviewing the evidence, we must determine first whether factual disputes exist. If a factual dispute exists, we must then determine whether the fact is material to the claim or defense upon which the summary judgment is predicated and whether the disputed fact creates a genuine issue for trial. Byrd v. Hall, 847 S.W.2d at 214; Rutherford v. Polar Tank Trailer, Inc., 978 S.W.2d 102, 104 (Tenn. Ct. App. 1998).

III.

THE APPLICATION OF TENN. CODE ANN. § 70-7-102

The State’s defense predicated on Tenn. Code Ann. § 70-7-102 figures prominently in this appeal even though the claims commissioner expressly declined to base his decision on this defense. 9 For her part, Ms. Morgan asserts that the commissioner erred by “failing and refusing” [*14] to rule on this defense. While the State does not specifically assert that the commissioner erred by not addressing this defense, 10 it asserts that it did not owe a duty to Ms. Zegilla by virtue of Tenn. Code Ann. § 70- 7-102. Accordingly, we have decided to address the applicability of Tenn. Code Ann. § 70-7-102 to this case head on.

9 The commissioner’s cryptic rulings regarding Tenn. Code Ann. § 70-7-102 are not easy to reconcile. He stated:

The Commission renders its ruling without considering the applicability of the state Recreational Use Immunity Statute. The individuals involved in this incident were using the State property for recreation, thus the Recreational Use Statute applies.

As for gross negligence, if the facts involved the Recreational Use statute alone, in absence of the other three factors discussed heretofore, then this claim should probably proceed to trial. Although the Commission believes there was not any gross negligence, it does not base its conclusion on the Recreational Use Immunity statute.

Because the commissioner stated twice that he was not basing his decision on Tenn. Code Ann. § 70-7-102, we will take him at his word.

[*15]

10 The State could have raised this issue pursuant to Tenn. R. App. P. 13(a).

A.

At common law, property owners could be held liable for injuries to persons who were using their property, with or without their permission, for recreational purposes. Beginning in the 1950s, state legislatures began to enact statutes to limit property owners’ liability when persons were using their property for recreational purposes. 11 The Tennessee General Assembly enacted one of these statutes in 1963. 12 As originally enacted, the statute was applicable only to private landowners and excluded from its coverage the “willful or malicious failure to guard or warn against a dangerous condition, use, structure or activity.”

11 James C. Becker, Landowner or Occupier Liability for Personal Injuries and Recreational Use Statutes: How Effective Is the Protection?, 24 Ind. L. Rev. 1587, 1587-88 (1991).

12 Act of Mar. 15, 1963, ch. 177, 1963 Tenn. Pub. Acts 784, codified at Tenn. Code Ann. §§ 70-7-101, -105 (1995).

[*16] In 1987, the Tennessee General Assembly amended the recreational use statute in two significant ways that are directly applicable to this case. First, it amended the statute to explicitly apply to real property owned by governmental entities. 13 Second, it broadened the exemption to cover “gross negligence, willful or wanton conduct.” 14

13 Act of May 7, 1987, ch. 448, § 8, 1987 Tenn. Pub. Acts 897, 899, codified at Tenn. Code Ann. § 70-7-101(2)(B).

14 Act of May 7, 1987, ch. 448, § 5, 1987 Tenn. Pub. Acts 897, 898, codified at Tenn. Code Ann. § 70-7-104(1).

The operation of the recreational use statutes is straightforward. Tenn. Code Ann. § 70-7-102 [HN6] is an affirmative defense available to persons who fit within the definition of “landowner” in Tenn. Code Ann. § 70-7-101(2). Parent v. State, 991 S.W.2d 240, 242 (Tenn. 1999); Bishop v. Beckner, 109 S.W.3d 725, 728 (Tenn. Ct. App. 2002). [*17] Landowners may assert a Tenn. Code Ann. § 70-7-102 defense if they prove that the injured person was engaged in a recreational activity 15 at the time of the injury. Plaintiffs may defeat this affirmative defense in essentially three ways: (1) prove that the defendant is not a “landowner,” (2) prove that the injured party was not engaged in a recreational activity, or (3) prove that the landowner’s conduct fits within one of the three exceptions in Tenn. Code Ann. § 70-7-104. The exceptions in Tenn. Code Ann. § 70-7-104 do not create new independent causes of action against the landowner. Rather, they enable a plaintiff to pursue its negligence claim by negating a landowner’s Tenn. Code Ann. § 70-7-102 defense. Parent v. State, 991 S.W.2d at 242-43.

15 The applicable recreational activities are identified in Tenn. Code Ann. §§ 70-7-102, -103.

[HN7] Applying Tenn. Code Ann. §§ 70-7-101 [*18] , -105 to a particular case requires a three-step analysis. First, the court must determine whether the party asserting the Tenn. Code Ann. § 70-7-102 defense is a landowner. Second, the court must determine whether the activity in which the injured party was engaged at the time of the injury is a recreational activity. Third, the court must determine whether any of the exceptions in Tenn. Code Ann. § 70-7-104 are applicable to the case. See Parent v. State, 991 S.W.2d at 243. If the activity is recreational and no Tenn. Code Ann. § 70-7-104 exceptions apply, the landowner is shielded from liability by Tenn. Code Ann. § 70-7-102. If, however, the activity is recreational, but one of the exceptions applies, the landowner may be liable.

B.

Based on the undisputed facts, there can be no dispute (1) that the State, as a governmental entity, is a “landowner” under Tenn. Code Ann. § 70-7-101(2)(B), (2) that Ms. Zegilla was engaged in a recreational activity because she was “hiking” or “sightseeing” when she fell to her death, [*19] and (3) that the land on which Ms. Zegilla was killed was not exempt from coverage of the statute. 16 Thus, the only remaining question with regard to the application of the recreational use statute is whether one of Tenn. Code Ann. § 70-7-104’s exceptions applies to this case. Ms. Morgan insists that the exception for gross negligence in Tenn. Code Ann. § 70-7-104(1) applies.

16 Ms. Morgan argued before the claims commissioner that improvements in state natural areas and parks were somehow exempt from Tenn. Code Ann. §§ 70-7-101, -105. However, both the Tennessee Supreme Court and this court have recognized that [HN8] the recreational use statute may apply to state parks and wildlife management areas. Parent v. State, 991 S.W.2d at 241; Rewcastle v. State, 2002 Tenn. App. LEXIS 943, No. E2002-00506-COA-R3-CV, 2002 WL 31926848, at *1 (Tenn. Ct. App. Dec. 31, 2002) (No Tenn. R. App. P. 11 application filed).

[HN9] Gross negligence [*20] is negligent conduct reflecting a reckless disregard for the safety of others. Davidson v. Power Bd., 686 S.W.2d 581, 586 (Tenn. Ct. App. 1984); Odum v. Haynes, 494 S.W.2d 795, 807 (Tenn. Ct. App. 1972). It does not require a particular state of mind as long as it creates an extremely unjustified risk to others. 1 DAN B. DOBBS, THE LAW OF TORTS § 147, at 351 (2001). It differs from ordinary negligence only in degree, not in kind. W. PAGE KEETON, PROSSER & KEETON ON THE LAW OF TORTS § 34, at 212 (5th ed. 1984). Thus, gross negligence is a negligent act or failure to act that reflects more than lack of ordinary care (simple negligence) but less than intentional misconduct. Inter-City Trucking Co. v. Daniels, 181 Tenn. 126, 129-30, 178 S.W.2d 756, 757 (1944); Bennett v. Woodard, 60 Tenn. App. 20, 31-32, 444 S.W.2d 89, 94 (1969).

[HN10] Determining whether particular conduct rises to the level of gross negligence is ordinarily a question of fact. 3 STUART M. SPEISER ET AL., THE AMERICAN LAW OF TORTS § 10:05, at 368 (1986) (“SPEISER”); see also Adams v. Roark, 686 S.W.2d 73, 76 (Tenn. 1985) (gross negligence [*21] determined from the facts alleged in the complaint). However, it may be decided as a matter of law when the material facts are not in dispute and when these facts, and the conclusions reasonably drawn from them, would permit a reasonable person to reach only one conclusion. Leatherwood v. Wadley, 121 S.W.3d 682, ___, 2003 WL 327517, at *8-9 (Tenn. Ct. App. 2003) (affirming summary judgment dismissing gross negligence claim); Buckner v. Varner, 793 S.W.2d 939, 941 (Tenn. Ct. App. 1990) (affirming summary judgment dismissing gross negligence claim); Fellows v. Sexton, 46 Tenn. App. 274, 282, 327 S.W.2d 391, 394 (1959) (granting a judgment notwithstanding the verdict on a gross negligence claim).

We find no evidence in this record upon which a reasonable person would conclude that the State was grossly negligent with regard to the construction or maintenance of the Colditz Cove State Natural Area. The State had a statutory obligation to maintain this area in a pristine, natural condition. Erecting warning signs, installing lighting along the trails, fencing the entire area, or installing guard rails, barriers, or other sorts of buffers, [*22] while perhaps appropriate at Dollywood, would have been entirely unwarranted and unnecessary at a natural area such as Colditz Cove. Accordingly, we have determined that the record, as a matter of law, supports the claims commissioner’s conclusion that “there was not any gross negligence.” 17 The State was simply not acting recklessly with disregard of the safety of persons entering the natural area.

17 Ms. Morgan asserts in her brief that “the State of Tennessee knew that at Northrop [sic] Falls . . . there was a cliff that eroded into a commonly used path which suddenly dropped at a ninety degree angle approximately one hundred feet and that it posed a deadly, dangerous condition.” This is the only assertion in her papers that approaches an allegation of gross negligence. We have searched the record for substantiation of this claim and have found none. There is no evidence that any of the trails in Colditz Cove had dangerously eroded on July 26, 1997. There is no evidence that the State had actual or constructive notice of any dangerous erosion along any of the trails in the natural area. There is likewise no evidence that either Ms. Zegilla or Mr. King fell to their deaths at a spot on the trail that had eroded.

[*23] Because the State was not grossly negligent, it was entitled to assert a defense predicated on Tenn. Code Ann. § 70-7-102. Therefore, we have concluded, based on the undisputed facts, that the recreational use statute shields the State from liability for Ms. Zegilla’s death and that the State was entitled to a summary judgment dismissing her claims on this ground alone.

IV.

THE STATE’S LIABILITY UNDER TENN. CODE ANN. § 9-8-307(a)(1)(C)

Despite our conclusion that the State has established an affirmative defense under Tenn. Code Ann. § 70-7-102 as a matter of law, we will also address Ms. Morgan’s assertion that the claims commissioner erred by concluding that she had failed to demonstrate that she would be able to prove that the State was liable for her daughter’s death under Tenn. Code Ann. § 9-8-307(a)(1)(C). We have concluded that the undisputed facts also support the commissioner’s conclusion that the State was entitled to a judgment as a matter of law because Ms. Morgan had not demonstrated that she would be able to prove the essential elements of her claim.

[*24] [HN11] The State is not the insurer of the safety of persons on its property. Byrd v. State, 905 S.W.2d 195, 197 (Tenn. Ct. App. 1995). It is, however, liable to these persons to the same extent that private owners and occupiers of land are liable, Sanders v. State, 783 S.W.2d 948, 951 (Tenn. Ct. App. 1989), because Tenn. Code Ann. § 9-8-307(a)(1)(C) has imposed this common-law duty on the State. Parent v. State, 991 S.W.2d at 242. Tenn. Code Ann. § 9-8-307(a)(1)(C) provides that the State may be held monetarily liable for

Negligently created or maintained dangerous conditions on state controlled real property. The claimant under this subsection must establish the foreseeability of the risks and notice given to the proper state officials at a time sufficiently prior to the injury for the state to have taken appropriate measures.

Based on this statute, the State, like a private landowner, has a duty to exercise reasonable care under the circumstances to prevent foreseeable injuries to persons on the premises. Eaton v. McLain, 891 S.W.2d at 593-94. This duty is [*25] grounded on the foreseeability of the risk involved. To recover, a claimant must prove that the injury was a reasonably foreseeable probability. Dobson v. State, 23 S.W.3d 324, 331 (Tenn. Ct. App. 1999).

Tenn. Code Ann. § 9-8-307(a)(1)(C) required Ms. Morgan to prove that Ms. Zegilla was injured in a manner that was reasonably foreseeable and that the State had actual or constructive notice of the dangerous condition that caused Ms. Zegilla’s death in time to take “appropriate measures.” The claims commissioner properly concluded that she failed on both counts.

The record contains no factual, legal, or policy basis for concluding that the State should have foreseen that intoxicated persons who were unfamiliar with the Colditz Cove State Natural Area would hike down the trail to Northrup Falls in the middle of the night without adequate illumination.

Likewise, the record contains no evidence meeting the standards in Tenn. R. Civ. P. 56.04 and Tenn. R. Civ. P. 56.06 that the improvements to Colditz Cove are either inherently dangerous 18 or, as we have already pointed out, that the State had actual or constructive notice of any particular [*26] dangerous condition in the natural area that caused Ms. Zegilla’s death.

18 Ms. Morgan’s lawyer asserted in the proceeding below that he had consulted an architect who “felt” that the Colditz Cove State Natural Area was “unduly dangerous” and that “the majority of the defects were certainly foreseeable and could have been rectified at a relatively modest capital investment.” While the record contains an unauthenticated letter from this architect summarizing his impressions of the improvements in the natural area, it does not contain the architect’s affidavit or deposition stating these conclusions. The architect’s letter does not meet the requirements in Tenn. R. Civ. P. 56.04 and Tenn. R. Civ. P. 56.06 for evidentiary materials that may be used to support or oppose a motion for summary judgment.

V.

COMPARISON OF MS. ZEGILLA’S FAULT WITH THE STATE’S FAULT

As a final issue, Ms. Morgan asserts that the claims commissioner erred by determining that Ms. Zegilla’s fault exceeded the State’s fault. [*27] She bases her argument on the assertion that the State’s “gross negligence” should somehow count for more in a comparative fault analysis. We have determined that this argument has no merit for two reasons. First, we have already concluded that the undisputed facts demonstrate, as a matter of law, that the State was not grossly negligent. Second, even if the States could somehow be considered grossly negligent, its fault would still be compared with Ms. Zegilla’s fault. Conroy v. City of Dickson, 49 S.W.3d 868, 873 (Tenn. Ct. App. 2001). A majority of the courts in comparative fault jurisdictions permit gross negligence to be compared to ordinary negligence. 3 SPEISER, § 13:25, at 764; 1 ARTHUR BEST, COMPARATIVE NEGLIGENCE LAW & PRACTICE § 4.40[3] (1999); Restatement (Third) of Torts: Apportionment of Fault § 7 cmt. b (1999).

[HN12] The allocation of fault is ordinarily a question of fact for the jury or the trial court sitting without a jury. Brown v. Wal-Mart Discount Cities, 12 S.W.3d 785, 789 (Tenn. 2000). The task of allocating fault should be taken from the fact-finder only when it can be determined beyond question (or alternatively, when reasonable [*28] minds cannot differ) that the plaintiff’s fault is equal to or greater than the defendant’s. Staples v. CBL & Assocs., Inc., 15 S.W.3d 83, 91-92 (Tenn. 2000); Eaton v. McLain, 891 S.W.2d at 589; Kim v. Boucher, 55 S.W.3d 551, 556-57 (Tenn. Ct. App. 2001). The procedural avenues for obtaining a decision that the plaintiff’s fault exceeds the defendant’s as a matter of law are governed by the Tennessee Rules of Civil Procedure. The question may be raised using (1) a motion for summary judgment under Tenn. R. Civ. P. 56, (2) a motion for directed verdict governed by Tenn. R. Civ. P. 50.01, and (3) a post-trial motion for a judgment as a matter of law governed by Tenn. R. Civ. P. 50.02. Henley v. Amacher, 2002 Tenn. App. LEXIS 72, No. M1999-02799-COA-R3-CV, 2002 WL 100402, at *6 (Tenn. Ct. App. Jan. 28, 2002) (No Tenn. R. App. P. 11 application filed).

Ms. Zegilla’s voluntary intoxication on the evening of July 26, 1997 does not relieve her from the responsibility of her own negligence. Kirksey v. Overton Pub, Inc., 739 S.W.2d 230, 235 (Tenn. 1987); Schwartz v. Johnson, 152 Tenn. 586, 592, 280 S.W. 32, 33 (1926). [*29] She was required to use reasonable care under the circumstances, and her conduct must be measured against the conduct of an ordinary, reasonable person rather than an ordinary and reasonable intoxicated person. Louisville & Nashville R.R. v. Hall, 5 Tenn. Civ. App. 491, 502 (1915). Accordingly, if her conduct while intoxicated was a proximate cause of her death, it may be compared with the fault of the other parties whose fault was also a proximate cause. Worley v. State, 1995 Tenn. App. LEXIS 755, No. 02A01-9312-BC-00267, 1995 WL 702792, at *6 (Tenn. Ct. App. Nov. 28, 1995) (No Tenn. R. App. P. 11 application filed).

It cannot be reasonably disputed that Ms. Zegilla was intoxicated when she arrived at Colditz Cove State Natural Area after midnight on July 26, 1997. Even though she had never visited the natural area before, she decided to venture into a wooded area down an unfamiliar, rough foot path in the dark. After one of her companions fell to his death, she continued to walk around in the darkness even though she must have known that danger was close at hand. As tragic as her death is, the only conclusion that reasonable persons can draw from these facts is that her fault [*30] far exceeded any fault that may reasonably be attributed to the State. Accordingly, the claims commissioner properly concluded the State was not liable to Ms. Zegilla’s estate because her fault exceeded any fault that could be attributed to the State.

VI.

We affirm the order dismissing the Tenn. Code Ann. § 9-8-307(a)(1)(C) claim of Ms. Zegilla’s estate against the State and remand the case to the Tennessee Claims Commission for whatever further proceedings may be required. We tax the costs of this appeal to Evelean Morgan for which execution, if necessary, may issue.


Tennessee Recreational Use Statute

Tennessee Recreational Use Statute

Title 70  Wildlife Resources 

Chapter 7  Liability for Activities 

Part 1  Liability of Landowner to Persons Using Land

GO TO THE TENNESSEE ANNOTATED STATUTES ARCHIVE DIRECTORY

Tenn. Code Ann. § 70-7-102  (2014)

70-7-101.  Part definitions.

As used in this part, unless the context otherwise requires:

(1)  (A) “Land” or “premises” means and includes all real property, waters, private ways, trees and any building or structure that might be located on real property, waters and private ways;

(B) “Land” or “premises” includes real property, waters, private ways, trees and any building or structure located on the land or premises, owned by any governmental entity, including, but not limited to, the Tennessee valley authority; and

(C) “Land” or “premises” does not include the landowner’s principal place of residence and any improvements erected for recreational purposes that immediately surround such residence, including, but not limited to, swimming pools, tennis or badminton courts, barbecue or horse shoe pits, jacuzzis, hot tubs or saunas;

(2)  (A) “Landowner” means the legal title holder or owner of such land or premises, or the person entitled to immediate possession of the land or premises, and includes any lessee, occupant or any other person in control of the land or premises; and

(B) “Landowner” includes any governmental entity.

70-7-102.  Landowner’s duty of care.

(a) The landowner, lessee, occupant, or any person in control of land or premises owes no duty of care to keep such land or premises safe for entry or use by others for such recreational activities as hunting, fishing, trapping, camping, water sports, white water rafting, canoeing, hiking, sightseeing, animal riding, bird watching, dog training, boating, caving, fruit and vegetable picking for the participant’s own use, nature and historical studies and research, rock climbing, skeet and trap shooting, skiing, off-road vehicle riding, and cutting or removing wood for the participant’s own use, nor shall such landowner be required to give any warning of hazardous conditions, uses of, structures, or activities on such land or premises to any person entering on such land or premises for such purposes, except as provided in § 70-7-104.

(b) The landowner, lessee, occupant, or any person in control of land or premises owes no duty of care to keep such land or premises safe for entry or use by others for recreational noncommercial aircraft operations or recreational noncommercial ultra light vehicle operations on private airstrips except as to known hazards or defects and except as provided in § 70-7-104.

70-7-103.  Effect of landowner’s permission.

Any landowner, lessee, occupant, or any person in control of the land or premises or such person’s agent who gives permission to another person to hunt, fish, trap, camp, engage in water sports, participate in white water rafting or canoeing, hike, sightsee, ride animals, bird watch, train dogs, boat, cave, pick fruit and vegetables for the participant’s own benefit, engage in nature and historical studies and research, climb rocks, shoot skeet and trap, ski, ride off-road vehicles, recreational noncommercial aircraft operations or recreational noncommercial ultra light vehicle operations on private airstrips, and cut and remove wood for the participant’s own use upon such land or premises does not by giving such permission:

(1) Extend any assurance that the premises are safe for such purpose;

(2) Constitute the person to whom permission has been granted to legal status of an invitee to whom a duty of care is owed; or

(3) Assume responsibility for or incur liability for any injury to such person or purposely caused by any act of such person to whom permission has been granted except as provided in § 70-7-104.

70-7-104.  Conditions under which liability unaffected.

(a) This part does not limit the liability that otherwise exists for:

(1) Gross negligence, willful or wanton conduct that results in a failure to guard or warn against a dangerous condition, use, structure or activity; or

(2) Injury caused by acts of persons to whom permission to hunt, fish, trap, camp, hike, sightsee, cave, recreational noncommercial aircraft operations or recreational noncommercial ultra light vehicle operations on private airstrips, or any other legal purpose was granted, to third persons or to persons to whom the person granting permission, or the landowner, lessee, occupant, or any person in control of the land or premises, owed a duty to keep the land or premises safe or to warn of danger.

(b) Subdivision (a)(1) shall not be construed to impose liability or remove the immunity conferred by § 70-7-102 for failure to guard or warn of a dangerous condition created by forces of nature.

70-7-105.  Waiver of landowner’s duty of care.

Any person eighteen (18) years of age or older entering the land of another for the purpose of camping, fishing, hunting, hiking, dog training, cutting or removing firewood, recreational noncommercial aircraft operations or recreational noncommercial ultra light vehicle operations on private airstrips, for such person’s use for a consideration may waive, in writing, the landowner’s duty of care to such person for injuries that arise from camping, fishing, hunting, hiking, dog training, cutting or removing firewood, recreational noncommercial aircraft operations or recreational noncommercial ultra light vehicle operations on private airstrips for such person’s use, if such waiver does not limit liability for gross negligence, or willful or wanton conduct, or for a failure to guard or warn against a dangerous condition, use, structure or activity.

WordPress Tags: Tennessee,Recreational,Statute,Title,Wildlife,Resources,Chapter,Activities,Part,Landowner,Persons,Land,STATUTES,ARCHIVE,DIRECTORY,Tenn,Code,definitions,context,premises,trees,valley,residence,improvements,purposes,horse,tubs,saunas,holder,owner,person,possession,lessee,occupant,bird,participant,road,vehicle,wood,aircraft,airstrips,Effect,permission,agent,boat,vegetables,vehicles,Extend,assurance,purpose,Constitute,status,Assume,injury,Conditions,Gross,negligence,failure,danger,Subdivision,Waiver,firewood,injuries,skeet,noncommercial,hike,whom

 


Tennessee Whitewater Rafting Professionals

Tennessee Whitewater Rafting Professionals

Title 70 Wildlife Resources 

Chapter 7 Liability for Activities 

Part 2 Whitewater Rafting Professionals

GO TO THE TENNESSEE ANNOTATED STATUTES ARCHIVE DIRECTORY

Tenn. Code Ann. § 70-7-201  (2013)

70-7-201. Part definitions.

As used in this part, unless the context otherwise requires:

(1) “Engages in whitewater activity” means whitewater rafting;

(2) “Inherent risks of whitewater activities” means those dangers or conditions that are an integral part of whitewater activities, including, but not limited to:

(A) Water;

(B) Rocks and obstructions;

(C) Cold water and weather; and

(D) The potential of a participant to act in a negligent manner that may contribute to injury to the participant or other, such as failing to follow instructions or not acting within the participant’s ability;

(3) “Participant” means any person who engages in a whitewater activity;

(4) “Whitewater” means rapidly moving water;

(5) “Whitewater activity” means navigation on rapidly moving water in a watercraft; and

(6) “Whitewater professional” means a person, corporation, LLC, partnership, natural person or any other entity engaged for compensation in whitewater activity.

HISTORY: Acts 2012, ch. 862, § 1.

NOTES: Compiler’s Notes.

For the Preamble to the act concerning the limitation of liability of those involved in whitewater activities, please refer to Acts 2012, ch. 862.

Former part 2, §§ 70-7-201 — 70-7-204 (Acts 2004, ch. 952, § 1), concerning white water rafting, was repealed effective May 17, 2005, by Acts 2005, ch. 169, § 1, which also enacted present part 2, §§ 70-7-201 — 70-7-207, in its place.

Former Part 2, §§ 70-7-201 — 70-7-208 (Acts 2005, ch. 169, § 1), concerning the Tennessee White Water Rafting Responsibility Act, was repealed by Acts 2005, ch. 169, § 2, as amended by Acts 2007, ch. 85, § 1, effective July 1, 2010.

Effective Dates.

Acts 2012, ch. 862, § 2. May 1, 2012.

70-7-202.  Limitations on liability of whitewater professional.

Except as provided in § 70-7-203:

(1) A whitewater professional shall not be liable for an injury to or the death of a participant resulting from the inherent risks of whitewater activities; and

(2) No participant or participant’s representative shall make any claim against, maintain an action against, or re-cover from a whitewater professional, or any other participant for injury, loss, damages, or death of the participant resulting from any of the inherent risks of whitewater activities.

HISTORY: Acts 2012, ch. 862, § 1.

NOTES: Compiler’s Notes.

For the Preamble to the act concerning the limitation of liability of those involved in whitewater activities, please refer to Acts 2012, ch. 862.

Former part 2, §§ 70-7-201 — 70-7-204 (Acts 2004, ch. 952, § 1), concerning white water rafting, was repealed ef-fective May 17, 2005, by Acts 2005, ch. 169, § 1, which also enacted present part 2, §§ 70-7-201 — 70-7-207, in its place.

Former Part 2, §§ 70-7-201 — 70-7-208 (Acts 2005, ch. 169, § 1), concerning the Tennessee White Water Rafting Responsibility Act, was repealed by Acts 2005, ch. 169, § 2, as amended by Acts 2007, ch. 85, § 1, effective July 1, 2010.

Effective Dates.

Acts 2012, ch. 862, § 2. May 1, 2012.

Section to Section References.

This section is referred to in § 70-7-203.

70-7-204.  Warning notice.

(a) Every whitewater professional shall either post and maintain signs that contain the warning notice prescribed in subsection (d) or give the warning in writing to participants. The signs shall be placed in clearly visible locations on or near places where the whitewater professional conducts whitewater activities, if the places are owned, managed, or controlled by the professional.

(b) The warning notice specified in subsection (d) shall appear on the sign in black letters, with each letter to be a minimum of one inch (1”) in height.

(c) Every written contract entered into by a whitewater professional for the purpose of providing professional services, instruction, or the rental of equipment to a participant, whether or not the contract involves activities on or off the location or site of the whitewater professional’s business, shall contain in clearly readable print the warning notice specified in subsection (d).

(d) The signs and contracts described in subsection (a) shall contain the following warning notice:

WARNING

Pursuant to Tenn. Code Annotated title 70, chapter 7, part 2, a whitewater professional is not liable for an injury to or the death of a participant in whitewater activities resulting from the inherent risks of whitewater activities.

HISTORY: Acts 2012, ch. 862, § 1.

NOTES: Compiler’s Notes.

For the Preamble to the act concerning the limitation of liability of those involved in whitewater activities, please refer to Acts 2012, ch. 862.

Former part 2, §§ 70-7-201 — 70-7-204 (Acts 2004, ch. 952, § 1), concerning white water rafting, was repealed ef-fective May 17, 2005, by Acts 2005, ch. 169, § 1, which also enacted present part 2, §§ 70-7-201 — 70-7-207, in its place.

Former Part 2, §§ 70-7-201 — 70-7-208 (Acts 2005, ch. 169, § 1), concerning the Tennessee White Water Rafting Responsibility Act, was repealed by Acts 2005, ch. 169, § 2, as amended by Acts 2007, ch. 85, § 1, effective July 1, 2010.

Effective Dates.

Acts 2012, ch. 862, § 2. May 1, 2012.

70-7-203.  When liability of whitewater professional imposed.

Nothing in § 70-7-202 shall be construed to prevent or limit the liability of a whitewater professional, or any other person if the whitewater professional:

(1) Provided the equipment and knew or should have known that the equipment was faulty, and the equipment was faulty to the extent that it caused the injury;

(2) Owns, leases, rents, or otherwise is in the lawful possession and control of the land or facilities upon which the participant sustained injuries because of a dangerous latent condition that was known to the whitewater professional, or person and for which warning signs have not been conspicuously posted;

(3) Commits an act or omission that constitutes gross negligence or willful or wanton disregard for the safety of the participant, and the act or omission caused the injury; or

(4) Intentionally injures the participant.

HISTORY: Acts 2012, ch. 862, § 1.

NOTES: Compiler’s Notes.

For the Preamble to the act concerning the limitation of liability of those involved in whitewater activities, please refer to Acts 2012, ch. 862.

Former part 2, §§ 70-7-201 — 70-7-204 (Acts 2004, ch. 952, § 1), concerning white water rafting, was repealed effective May 17, 2005, by Acts 2005, ch. 169, § 1, which also enacted present part 2, §§ 70-7-201 — 70-7-207, in its place.

Former Part 2, §§ 70-7-201 — 70-7-208 (Acts 2005, ch. 169, § 1), concerning the Tennessee White Water Rafting Responsibility Act, was repealed by Acts 2005, ch. 169, § 2, as amended by Acts 2007, ch. 85, § 1, effective July 1, 2010.

Effective Dates.

Acts 2012, ch. 862, § 2. May 1, 2012.

Section to Section References.

This section is referred to in § 70-7-202.

70-7-205. Written waivers, exculpatory agreements and releases.

Nothing in this part shall modify, constrict or prohibit the use of written waivers, exculpatory agreements or releases. This part is intended to provide additional limitations of liability for whitewater professionals, whether or not such agreements are used.

HISTORY: Acts 2012, ch. 862, § 1.

NOTES: Compiler’s Notes.

For the Preamble to the act concerning the limitation of liability of those involved in whitewater activities, please refer to Acts 2012, ch. 862.

Former part 2, §§ 70-7-201 — 70-7-204 (Acts 2004, ch. 952, § 1), concerning white water rafting, was repealed ef-fective May 17, 2005, by Acts 2005, ch. 169, § 1, which also enacted present part 2, §§ 70-7-201 — 70-7-207, in its place.

Former Part 2, §§ 70-7-201 — 70-7-208 (Acts 2005, ch. 169, § 1), concerning the Tennessee White Water Rafting Responsibility Act, was repealed by Acts 2005, ch. 169, § 2, as amended by Acts 2007, ch. 85, § 1, effective July 1, 2010.

Effective Dates.

Acts 2012, ch. 862, § 2. May 1, 2012.


Release signed for whitewater rafting also works to stop claim for tripping getting out of raft bus. Tennessee release law broad enough to protect items enumerated in the release

Henderson v. Quest Expeditions, Inc. 174 S.W.3d 730; 2005 Tenn. App. LEXIS 334

Plaintiff: Nathan & Brandy Henderson

Defendant: Quest Expeditions, Inc.

Plaintiff Claims: negligence

Defendant Defenses: Release

Holding: for the defendant based on the release

This Tennessee case is quite interesting. The plaintiff was a first-time whitewater rafter. After the raft trip ended, he boarded the bus to ride back to the office. For some reason, not in the record, he was forced to get out of the first bus and board another bus. While disembarking from the first bus he slipped and fell sustaining injuries.

He filed this suit which was dismissed by the trial court based on a Motion for Summary Judgment. The plaintiff appealed arguing the release was barred by public policy and void because it was too excessive in its scope.

Summary of the case

The court looked at all arguments raised by the plaintiff on appeal. Some that I have reviewed and written about before and some new and “novel” theories.

The first issue was the plaintiff stated the release should be thrown out because the plaintiff “had no previous white-water rafting experience, and was given a pre-printed document to sign prior to the excursion which was not reviewed with him by an employee of defendant.”

Can you imagine the pile up in an office if you had to go over each release with each patron who came to purchase a trip from you?

The plaintiff also argued that “he was not advised whether there were any other rafting companies who would allow him to go rafting without having to sign a waiver, or whether he could pay additional money to not have to sign the waiver.”

This is a rare argument, but it has been used to defeat releases in a few cases. See Atkins v. Swimwest Family Fitness Center, 2005 WI 4; 2005 Wisc. LEXIS 2.

The next argument was the release was void because it violated public policy. The court first looked at whether releases were valid in Tennessee. The Tennessee Supreme Court upheld releases.

It is well settled in this State that parties may contract that one shall not be liable for his negligence to another but that such other shall assume the risk incident to such negligence. . . . Further, it is not necessary that the word ‘negligence’ appear in the exculpatory clause and the public policy of Tennessee favors freedom to contract against liability for negligence.

Of note is the statement by the court that the word negligence does not need to appear in the release. The Tennessee Supreme Court adopted the requirements of Tunkl v. Regents of University of California, 60 Cal. 2d 92, 383 P.2d 441, 32 Cal. Rptr. 33 (Ca. 1963) to determine if an activity should not be covered by a release.

(a.) It concerns a business of a type generally thought suitable for public regulation.

(b.) The party seeking exculpation is engaged in performing a service of great importance to the public, which is often a matter of practical necessity for some members of the public.

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

(d.) As a result of the essential nature of the service, in the economic setting of the transaction, the party invoking exculpation possesses a decisive advantage of bargaining strength against any member of the public who seeks his services.

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

(f.) Finally, as a result of the transaction, the person or property of the purchaser is placed under the control of the seller, subject to the risk of carelessness by the seller or his agents.

The court then looked at the factors as explained by the Tennessee Supreme Court. Generally, professionals are not allowed to receive a release for their negligence, where tradesmen could.

…not all of the factors had to be present in order to invalidate an exculpatory agreement, but generally, the factors were limited to circumstances involving “a contract with a profession, as opposed to ‘tradesmen in the marketplace’

Whitewater rafting is not a professional trade and as such the defendant could use a release. Whitewater rafting “is not a service of “great importance to the public, which is often a matter of practical necessity for some members of the public.” There is no necessity that one goes whitewater rafting.

The plaintiff then argued that because whitewater rafting was regulated it was of a public interest. Tennessee’s legislature passed 2005 Tenn. Pub. Acts 169 which regulated whitewater rafting in the state. However, the statute specifically allowed the use of releases. T.C.A. 70-7-205. Written waivers, exculpatory agreements and releases.

The final argument was the injury received by the plaintiff, slipping exiting a bus, which not an inherent risk of whitewater rafting and thus of outside the scope of the release. The plaintiff described the busses of the defendant in his complaint as: “…dilapidated school buses.” (Seems like a normal rafting company to me……

However, the court rejected that argument on two grounds. The first was the release was written broadly and covered all negligent acts of the defendant. The second was the release mentioned bus or van transportation. “Moreover, the Contract specifically mentions that plaintiffs are being furnished and participating in white-water rafting and “bus or van transportation” provided by the defendant.”

The court concluded:

The Contract under consideration is clear and unambiguous, and states that plaintiffs agreed to release defendant from any and all liability, including defendant’s own negligence. Moreover, the Contract specifically mentions that plaintiffs are being furnished and participating in white water rafting and “bus or van transportation” provided by the defendant. The Contract states that plaintiffs realize that they could be injured due to dangers from the rafting as well as the use of white water equipment, forces of nature, or even due to the negligence of defendant’s employees and other rafters. The Con-tract states that defendant is being relieved of any liability caused by its own negligence in no less than four places, the last of which is in bold print above the signature line. This Contract is plain, and enforceable as written.

So Now What?

First never run the risk of having a release thrown out because it does not include the magic word negligence. Even though the Supreme Court may not require it today, your lawsuit tomorrow may set precedence on that issue. It is easy to put in and should be in every release.

To defeat the argument that you should be able to bargain your way out of the release or that whether there are any other companies offering trips without requiring a release to be signed you should put language in your release advising your clients about those issues. A release that states that the person is signing the release voluntarily and undertaking the activity voluntarily and is free to go, as in this case, whitewater rafting with someone else can eliminate this argument in most states.

To engage or purchase a trip with you without signing a release have your insurance company send you a letter stating how much your insurance would cost if a release is not signed. Then if asked you can show a patron the letter to support charging the normal price plus the increase in your insurance premium to go on a trip without signing a release. A $10,095.00 raft trip is probably not worth it for a day on the water.

If anyone asks if they can go rafting and not sign a release, the easiest way to respond is to send them to a competitor.

Whether or not transportation will be covered by a release will be different for each state. In some states if the transportation is incidental to the activity it may be covered. Here the release was written broadly, and releases are interpreted broadly to allow the scope of the release to cover transportation.

In some states, however, transportation is an activity that cannot be released because it is protected by public policy.

 

What do you think? Leave a comment.

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

Copyright 2013 Recreation Law (720) Edit Law

Email: Rec-law@recreation-law.com

Google+: +Recreation

Twitter: RecreationLaw

Facebook: Rec.Law.Now

Facebook Page: Outdoor Recreation & Adventure Travel Law

Blog: www.recreation-law.com

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

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

<rel=”author” link=” https://plus.google.com/u/0/b/112453188060350225356/” />

#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, Quest Expeditions, Inc., Nathan & Brandy Henderson, Whitewater Rafting, Tennessee, Rafting Bus, Negligence, Public Policy, Statute, Whitewater Rafting, Rafting, Release, Bus, Transportation,

WordPress Tags: Release,whitewater,Tennessee,items,Henderson,Quest,Expeditions,Tenn,LEXIS,Plaintiff,Nathan,Brandy,Defendant,Claims,negligence,Defenses,office,injuries,Motion,Summary,Judgment,policy,scope,arguments,Some,theories,employee,patron,waiver,money,argument,Atkins,Swimwest,Center,Wisc,Supreme,Court,State,incident,Further,clause,freedom,statement,requirements,Tunkl,Regents,California,Rptr,regulation,exculpation,importance,member,transaction,advantage,strength,adhesion,provision,purchaser,protection,person,seller,agents,factors,professionals,agreement,profession,marketplace,legislature,Acts,statute,Written,waivers,agreements,injury,complaint,Seems,transportation,Moreover,Contract,plaintiffs,dangers,equipment,employees,tract,signature,lawsuit,precedence,clients,insurance,letter,cost,worth,competitor,Whether,Here,Leave,FaceBook,Twitter,LinkedIn,Recreation,Edit,Email,Google,RecreationLaw,Page,Outdoor,Adventure,Travel,Blog,Mobile,Site,James,Moss,Authorrank,author,AdventureTourism,AdventureTravelLaw,AdventureTravelLawyer,AttorneyatLaw,BicyclingLaw,Camps,ChallengeCourse,ChallengeCourseLaw,ChallengeCourseLawyer,CyclingLaw,FitnessLaw,FitnessLawyer,HumanPoweredRecreation,JamesHMoss,JimMoss,OutdoorLaw,OutdoorRecreationLaw,OutsideLaw,OutsideLawyer,RecLaw,RecLawBlog,LawBlog,RecLawyer,RecreationalLawyer,RecreationLawBlog,RecreationLawcom,Lawcom,RiskManagement,RockClimbingLawyer,RopesCourse,RopesCourseLawyer,SkiAreas,SkiLaw,SummerCamp,Tourism,TravelLaw,YouthCamps,ZipLineLawyer,Public,exculpatory,tradesmen


Henderson v. Quest Expeditions, Inc. 174 S.W.3d 730; 2005 Tenn. App. LEXIS 334

Henderson v. Quest Expeditions, Inc. 174 S.W.3d 730; 2005 Tenn. App. LEXIS 334

Nathan & Brandy Henderson v. Quest Expeditions, Inc.

No. E2004-02585-COA-R3-CV

COURT OF APPEALS OF TENNESSEE, AT KNOXVILLE

174 S.W.3d 730; 2005 Tenn. App. LEXIS 334

April 4, 2005, Session

June 8, 2005, Filed

SUBSEQUENT HISTORY: Appeal denied by Henderson v. Quest Expeditions, Inc., 2005 Tenn. LEXIS 962 (Tenn., Oct. 24, 2005)

PRIOR HISTORY: [**1] Tenn. R. App. P.3 Appeal as of Right; Judgment of the Circuit Court Affirmed. Direct Appeal from the Circuit Court for Polk County. No. CV-03-130. Hon. John B. Hagler, Circuit Judge.

DISPOSITION: Judgment of the Circuit Court Affirmed.

COUNSEL: H. Franklin Chancey, Cleveland, Tennessee, for appellants.

Gary A. Cooper, Chattanooga, Tennessee, for appellee.

JUDGES: HERSCHEL PICKENS FRANKS, P.J., delivered the opinion of the court, in which CHARLES D. SUSANO, JR., J., and D. MICHAEL SWINEY, J., joined.

OPINION BY: HERSCHEL PICKENS FRANKS

OPINION

[*731] In this action for personal injuries allegedly due to defendant’s negligence, the Trial Court granted defendant summary judgment on the grounds that plaintiffs had executed a Waiver and Release of Liability which was required by defendant prior to plaintiffs’ participation in white water rafting. Plaintiffs have appealed, insisting the Release is void as against the public policy of this State. We affirm.

Plaintiffs’ Complaint alleged that Henderson was injured while on a white water rafting expedition operated by defendant. The Complaint alleged that defendant “ferries rafters to and from the Ocoee River by means of a series of dilapidated school buses.”, and that [**2] after Henderson had completed his rafting trip, he and other rafters were put on a bus, and then told to get on another bus, and when disembarking from the first bus he slipped and fell, sustaining severe personal injuries. Plaintiffs further alleged that defendant’s negligence was the proximate cause of his injuries.

Defendant in its Answer admitted that Henderson had participated in a rafting trip sponsored by defendant, and among its defenses raised was waiver, because plaintiff had signed a “Waiver and Release of Liability”, which defendant attached to its Answer.

In their Answers to Requests for Admissions, plaintiffs admitted that the waiver in question had been signed by Henderson. Defendant then filed a Motion for Summary Judgment, which plaintiffs opposed and Henderson filed his Affidavit which stated that Henderson had no previous white-water rafting experience, and was given a pre-printed document to sign prior to the excursion which was not reviewed with him by an employee of defendant. He further stated that he was not advised whether there were any other rafting companies who would allow him to go rafting without having to sign a waiver, or whether he could pay additional [**3] money to not have to sign the waiver.

The Trial Court determined that the waiver in this case did not affect the public interest, and thus the waiver was not void as against public policy. The court noted that Olson v. Molzen, 558 S.W.2d 429 (Tenn. 1977) did not apply to this situation and he was guided by the rule adopted in California, which states that “exculpatory agreements in the recreational sports context do not implicate the public interest.” Citing Allan v. Snow Summit, Inc., 51 Cal. App. 4th 1358, 59 Cal.Rptr.2d 813, 823 (Ca. App. 1996).

Plaintiffs on appeal insist the Waiver is void against public policy, and in the alternative, that the Waiver was void on the grounds it was too excessive in scope.

Plaintiffs concede that if the Waiver is enforceable then this action is barred, but argue the waiver violates the public policy of this State.

[*732] As our Supreme Court has explained:

[HN1] It is well settled in this State that parties may contract that one shall not be liable for his negligence to another but that such other shall assume the risk incident to such negligence. . . . Further, it is not necessary that the word ‘negligence’ appear [**4] in the exculpatory clause and the public policy of Tennessee favors freedom to contract against liability for negligence.

Empress Health and Beauty Spa, Inc. v. Turner, 503 S.W.2d 188 (Tenn. 1973).

An exception to this rule was recognized by the Supreme Court in Olson v. Molzen, wherein the Court held that certain relationships required greater responsibility which would render such a release “obnoxious”. Olson, at p. 430. The Court adopted the opinion of the California Supreme Court in Tunkl v. Regents of University of California, 60 Cal. 2d 92, 383 P.2d 441, 32 Cal. Rptr. 33 (Ca. 1963), which held that where the public interest would be affected by an exculpatory provision, such provision could be held invalid. Olson, at p. 431.

[HN2] Our Supreme Court adopted the six criteria set forth in Tunkl as useful in determining when an exculpatory provision should be held invalid as contrary to public policy. See Olson. These criteria are:

(a.) It concerns a business of a type generally thought suitable for public regulation.

(b.) The party seeking exculpation is engaged in performing a service of great importance to [**5] the public, which is often a matter of practical necessity for some members of the public.

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

(d.) As a result of the essential nature of the service, in the economic setting of the transaction, the party invoking exculpation possesses a decisive advantage of bargaining strength against any member of the public who seeks his services.

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

(f.) Finally, as a result of the transaction, the person or property of the purchaser is placed under the control of the seller, subject to the risk of carelessness by the seller or his agents.

Olson, at p. 431.

In Olson, the Supreme Court invalidated a contract between a doctor and patient which attempted to release the doctor from liability for his negligence in the performance of medical [**6] services. Also see Carey v. Merritt, 148 S.W.3d 912 (Tenn. Ct. App. 2004) and Russell v. Bray, 116 S.W.3d 1 (Tenn. Ct. App. 2003). In Russell, this Court refused to enforce an exculpatory contract between home buyers and the home inspectors who were hired by the buyers, because the Court found that the home inspectors were professionals whose services affected the public interest, and thus the contracts were offensive to public policy, based on the factors enumerated in Olson. In Carey, this Court made clear that [HN3] not all of the factors had to be present in order to invalidate an exculpatory agreement, but generally, the factors were limited to circumstances involving “a contract with a profession, as opposed to ‘tradesmen in the marketplace’.” Carey, at p. 916; cf. Parton v. Mark Pirtle Oldsmobile-Cadillac-Isuzu, Inc., 730 S.W.2d 634 [*733] (Tenn. Ct. App. 1987) (auto repair shop is not “professional” as would qualify it as service affecting public interest in order to invalidate exculpatory contract).

This case is factually different from Olson, Carey, and Parton because the white-water rafting service offered [**7] by defendant is not a “professional” trade, which affects the public interest. As discussed in factor number two quoted above, this is not a service of “great importance to the public, which is often a matter of practical necessity for some members of the public.” See Olson. There is no necessity that one go white-water rafting. In fact, [HN4] many jurisdictions have recognized that such recreational sporting activities are not activities of an essential nature which would render exculpatory clauses contrary to the public interest. See Seigneur v. National Fitness Institute, Inc., 132 Md. App. 271, 752 A.2d 631 (Md. Ct. Spec. App. 2000) (health club services not essential for purposes of holding exculpatory clause unenforceable as offensive to public interest); Allan v. Snow Summit, Inc., 51 Cal. App. 4th 1358, 59 Cal.Rptr.2d 813 (Cal. Ct. App. 1996) (“voluntary participation in recreational and sports activities [skiing] does not implicate the public interest”); Schutkowski v. Carey, 725 P.2d 1057 (Wyo. 1986) (sky diving and other private recreational businesses generally do not involve services which are necessary to the public such [**8] that exculpatory contract would be invalidated).

Plaintiffs argue that the Release in this case does affect the public interest because the business involved, i.e. commercial white-water rafting, is subject to regulation. While this is true, the presence of this factor does not render this Release offensive to the public interest. In fact, [HN5] recent legislation passed by the Tennessee Legislature “recognizes that the State has a legitimate interest in maintaining the economic viability of commercial white water rafting operations” because the State and its citizens benefit thereby. 2005 Tenn. Pub. Acts 169. This act states the legislative intent is to “encourage white water rafting by discouraging claims based on injury, death or damages resulting from risks inherent in white water rafting.” Id. Thus, the Tennessee legislature has evidenced that the public policy of this State is that commercial white water rafting companies be protected from claims for injuries to patrons.

Accordingly we affirm the Trial Court’s determination that the exculpatory contract in this case does not affect the public interest such that it should be invalidated pursuant to the Olson criteria.

Finally, [**9] appellants argue that the Release in this case should not operate as a bar to their claims because the injury suffered by Henderson was not within the “inherent risks” of the sport of white water rafting, and thus was not within the contemplation of the parties when the release was signed.

In the cases relied on by the plaintiffs regarding the scope of exculpatory provisions in the context of a sport, there are no provisions in those agreements which purport to release the defendant from its own negligence. For example, in Johnson v. Thruway Speedways, Inc., 63 A.D.2d 204, 407 N.Y.S.2d 81 (N.Y. App. Div. 1978), the Court refused to uphold a grant of summary judgment based on a release signed by the plaintiff prior to the sporting event. The Court stated that language of the release (which was not quoted in the opinion) “could lead to the conclusion that it only applied to injuries sustained by a spectator which were associated with the risks inherent in the activity of automobile racing”. The plaintiff in that case was injured when he was hit by a maintenance vehicle not involved in the race. Id. at 205. Thus, the Court [*734] held that this created a triable issue of fact [**10] as to whether the incident was of the type contemplated by the parties when the release was signed. Id.

Similarly, in the case of Larsen v. Vic Tanny International, 130 Ill. App. 3d 574, 474 N.E.2d 729, 85 Ill. Dec. 769 (Ill. App. Ct. 1984), the plaintiff was injured when he inhaled dangerous vapors created by the negligent mixing of cleaning compounds by the defendant health club’s employee. Plaintiff had signed a membership contract which contained exculpatory language regarding plaintiff’s use of the facilities (but did not mention any negligence by defendant). Id. The Court stated this type of injury was arguably not foreseeable to plaintiff when he signed the release, and thus a fact question existed regarding the parties’ intent behind the exculpation clause, which precluded summary judgment. Id. 1

1 The Court noted the result would have been different if plaintiff’s injuries stemmed from a slip and fall in an area adjacent to a swimming pool, citing its previous decision in Owen v. Vic Tanny Enterprises, 48 Ill. App. 2d 344, 199 N.E.2d 280 (Ill. App. Ct. 1964).

[**11] In another case where “negligence” is included in the release, Sweat v. Big Time Auto Racing, Inc., 117 Cal. App. 4th 1301, 12 Cal.Rptr. 3d 678 (Cal. Ct. App. 2004), the plaintiff was injured when the pit-area bleachers collapsed. Plaintiff had signed a release before entering the pit area, which stated that he released the defendant from all liability “whether caused by the negligence of the releasees or otherwise while the undersigned is in or upon the restricted area and/or . . . observing . . . the event.” Id. at 680. The Court found that the release was ambiguous due to the “and/or” language used, and thus relied on extrinsic evidence in interpreting the release, such as the fact that anyone could enter the pit area without signing the release once the race was over. The Court concluded that the release was only intended to apply to the risks inherent in being in close proximity to a race, and was not intended to cover the type of incident which occurred when the bleachers collapsed due to defective construction/maintenance. Id.

[HN6] The majority view from sister states is that an exculpatory provision which specifically and expressly releases a defendant from [**12] its own negligence will be upheld, without regard to whether the injury sustained is one typically thought to be “inherent in the sport”. In fact, there seems to be a split of authority among the states regarding whether the word “negligence” is even required to be present in the exculpation clause for the provision to be construed as releasing the defendant from its own negligence. Cases from Connecticut, for example, have held that in order for an exculpatory provision to be construed as releasing a defendant from its own negligence, the provision must expressly mention negligence . The cases are equally clear, however, that if the provision does expressly release the defendant from its own negligence, then it will be upheld as written. See Hyson v. White Water Mtn. Resorts, 265 Conn. 636, 829 A.2d 827 (Conn. 2003) (snowtubing); Brown v. Sol, 2004 Conn. Super. LEXIS 2430, 2004 WL 2165638 (Conn. Super. Ct. Aug. 31, 2004) (racing school); DiMaggio v. LaBreque, 2003 Conn. Super. LEXIS 2823, 2003 WL 22480968 (Conn. Super. Ct. Oct. 9, 2003) (parachuting).

[HN7] Most jurisdictions, including Tennessee, have held that if the exculpation contract sufficiently demonstrates the parties’ intent to eliminate [**13] liability for negligence, the absence of the word “negligence” is not fatal. See Krazek v. Mountain River Tours, Inc., 884 F.2d 163 (4th Cir. 1989) (white water rafting); Saenz v. Whitewater Voyages, Inc., 226 Cal. App. 3d 758, 276 Cal.Rptr. 672 (Cal. Ct. App. 1991) (white water rafting); Heil Valley Ranch, Inc. v. Simkin, 784 P.2d 781 (Colo. 1989) (horseback [*735] riding); Seigneur v. National Fitness Institute, Inc., 132 Md. App. 271, 752 A.2d 631 (Md. Ct. Spec. App. 2000) (health club); Petry v. Cosmopolitan Spa Intern., Inc., 641 S.W.2d 202 (Tenn. Ct. App. 1982) (health club); Murphy v. North American River Runners, Inc., 186 W. Va. 310, 412 S.E.2d 504 (W. Va. 1991) (white water rafting); Schutkowski v. Carey, 725 P.2d 1057 (Wyo. 1986) (skydiving). In these cases, the fact that the injury occurred during an activity that was not foreseeable or not associated with a risk “inherent in the sport” did not matter. See, e.g., Benedek (health club member injured when adjusting a television set above exercise machines which fell); Murphy (white water rafter injured [**14] when her raft tried to engage in rescue of another raft), and Petry (patron of health club injured when exercise machine she was sitting on collapsed).

In this case, the Release in question does specifically and expressly release defendant from any liability for its negligence or that of any employees, owners, agents, etc. In the matter of contract interpretation, this Court has previously explained:

[HN8] The cardinal rule in the construction of contracts is to ascertain the intent of the parties. West v. Laminite Plastics Mfg. Co., 674 S.W.2d 310 (Tenn. App. 1984). If the contract is plain and unambiguous, the meaning thereof is a question of law, and it is the Court’s function to interpret the contract as written according to its plain terms. Petty v. Sloan, 197 Tenn. 630, 277 S.W.2d 355 (1955). The language used in a contract must be taken and understood in its plain, ordinary, and popular sense. Bob Pearsall Motors, Inc. v. Regal Chrysler-Plymouth, Inc., 521 S.W.2d 578 (Tenn. 1975). In construing contracts, the words expressing the parties’ intentions should be given the usual, natural, and ordinary meaning. Ballard v. North American Life & Cas. Co., 667 S.W.2d 79 (Tenn. App. 1983). [**15] If the language of a written instrument is unambiguous, the Court must interpret it as written rather than according to the unexpressed intention of one of the parties. Sutton v. First Nat. Bank of Crossville, 620 S.W.2d 526 (Tenn. App. 1981). Courts cannot make contracts for parties but can only enforce the contract which the parties themselves have made. McKee v. Continental Ins. Co., 191 Tenn. 413, 234 S.W.2d 830, 22 A.L.R.2d 980 (1951).

Bradson Mercantile, Inc. v. Crabtree, 1 S.W.3d 648, 652 (Tenn. Ct. App. 1999).

The Contract under consideration is clear and unambiguous, and states that plaintiffs agreed to release defendant from any and all liability, including defendant’s own negligence. Moreover, the Contract specifically mentions that plaintiffs are being furnished and participating in white water rafting and “bus or van transportation” provided by the defendant. The Contract states that plaintiffs realize that they could be injured due to dangers from the rafting as well as the use of white water equipment, forces of nature, or even due to the negligence of defendant’s employees and other rafters. The Contract states [**16] that defendant is being relieved of any liability caused by its own negligence in no less than four places, the last of which is in bold print above the signature line. This Contract is plain, and enforceable as written. We conclude the Trial Court properly granted summary judgment to defendant on plaintiffs’ negligence claims.

The Trial Court’s Judgment is affirmed, and the cost of the appeal is assessed to plaintiffs Nathan and Brandy Henderson.

HERSCHEL PICKENS FRANKS, P.J.

WordPress Tags: Henderson,Quest,Expeditions,Tenn,LEXIS,Nathan,Brandy,COURT,APPEALS,TENNESSEE,KNOXVILLE,April,Session,June,SUBSEQUENT,HISTORY,Appeal,PRIOR,Judgment,Circuit,Direct,Polk,John,Hagler,Judge,DISPOSITION,COUNSEL,Franklin,Chancey,Cleveland,appellants,Gary,Cooper,Chattanooga,JUDGES,HERSCHEL,PICKENS,FRANKS,opinion,CHARLES,SUSANO,MICHAEL,SWINEY,action,injuries,defendant,negligence,Trial,plaintiffs,Waiver,Release,participation,policy,State,Complaint,expedition,Ocoee,River,series,Answer,plaintiff,Answers,Requests,Admissions,Motion,Summary,Affidavit,employee,money,Olson,Molzen,situation,California,agreements,context,Allan,Summit,Rptr,scope,Supreme,incident,Further,clause,freedom,Health,Turner,exception,relationships,Tunkl,Regents,provision,criteria,regulation,exculpation,importance,member,transaction,advantage,strength,adhesion,purchaser,protection,person,seller,agents,performance,Also,Carey,Merritt,Russell,Bray,buyers,inspectors,professionals,factors,agreement,profession,marketplace,Parton,Mark,Pirtle,Oldsmobile,Cadillac,Isuzu,auto,factor,fact,jurisdictions,clauses,Seigneur,National,Institute,Spec,purposes,Schutkowski,presence,legislation,Legislature,citizens,Acts,injury,death,Thus,patrons,determination,contemplation,example,Johnson,Thruway,Speedways,event,conclusion,spectator,automobile,maintenance,vehicle,Larsen,Tanny,International,compounds,membership,facilities,area,decision,Owen,Enterprises,Sweat,Time,bleachers,construction,Cases,Connecticut,Hyson,White,Water,Resorts,Conn,Brown,Super,DiMaggio,LaBreque,Most,absence,Krazek,Mountain,Tours,Saenz,Whitewater,Voyages,Heil,Valley,Ranch,Simkin,Colo,Petry,Cosmopolitan,Intern,Murphy,North,American,Runners,Benedek,television,patron,machine,employees,owners,interpretation,West,Laminite,Plastics,Sloan,Pearsall,Motors,Regal,Chrysler,Plymouth,intentions,Ballard,Life,instrument,intention,Sutton,Bank,Crossville,Courts,McKee,Continental,Bradson,Mercantile,Crabtree,Contract,Moreover,transportation,dangers,equipment,signature,cost,whether,exculpatory,enforceable


Liability for Activities Whitewater Rafting Professionals

Tennessee Whitewater Rafting Statute

TENNESSEE CODE ANNOTATED

Title 70           Wildlife Resources

Chapter 7      Liability for Activities

Part 2  Whitewater Rafting Professionals

GO TO THE TENNESSEE ANNOTATED STATUTES ARCHIVE DIRECTORY

Tenn. Code Ann. § 70-7-204         (2013)

70-7-201. Part definitions.

As used in this part, unless the context otherwise requires:

(1) “Engages in whitewater activity” means whitewater rafting;

(2) “Inherent risks of whitewater activities” means those dangers or conditions that are an integral part of whitewater activities, including, but not limited to:

(A) Water;

(B) Rocks and obstructions;

(C) Cold water and weather; and

(D) The potential of a participant to act in a negligent manner that may contribute to injury to the participant or other, such as failing to follow instructions or not acting within the participant’s ability;

(3) “Participant” means any person who engages in a whitewater activity;

(4) “Whitewater” means rapidly moving water;

(5) “Whitewater activity” means navigation on rapidly moving water in a watercraft; and

(6) “Whitewater professional” means a person, corporation, LLC, partnership, natural person or any other en-tity engaged for compensation in whitewater activity.

HISTORY: Acts 2012, ch. 862, § 1.

NOTES: Compiler’s Notes.

For the Preamble to the act concerning the limitation of liability of those involved in whitewater activities, please refer to Acts 2012, ch. 862.

Former part 2, §§ 70-7-201 — 70-7-204 (Acts 2004, ch. 952, § 1), concerning white water rafting, was repealed ef-fective May 17, 2005, by Acts 2005, ch. 169, § 1, which also enacted present part 2, §§ 70-7-201 — 70-7-207, in its place.

Former Part 2, §§ 70-7-201 — 70-7-208 (Acts 2005, ch. 169, § 1), concerning the Tennessee White Water Rafting Responsibility Act, was repealed by Acts 2005, ch. 169, § 2, as amended by Acts 2007, ch. 85, § 1, effective July 1, 2010.

Effective Dates.

Acts 2012, ch. 862, § 2. May 1, 2012.

70-7-202. Limitations on liability of whitewater professional.

Except as provided in § 70-7-203:

(1) A whitewater professional shall not be liable for an injury to or the death of a participant resulting from the inherent risks of whitewater activities; and

(2) No participant or participant’s representative shall make any claim against, maintain an action against, or re-cover from a whitewater professional, or any other participant for injury, loss, damages, or death of the participant resulting from any of the inherent risks of whitewater activities.

HISTORY: Acts 2012, ch. 862, § 1.

NOTES: Compiler’s Notes.

For the Preamble to the act concerning the limitation of liability of those involved in whitewater activities, please refer to Acts 2012, ch. 862.

Former part 2, §§ 70-7-201 — 70-7-204 (Acts 2004, ch. 952, § 1), concerning white water rafting, was repealed ef-fective May 17, 2005, by Acts 2005, ch. 169, § 1, which also enacted present part 2, §§ 70-7-201 — 70-7-207, in its place.

Former Part 2, §§ 70-7-201 — 70-7-208 (Acts 2005, ch. 169, § 1), concerning the Tennessee White Water Rafting Responsibility Act, was repealed by Acts 2005, ch. 169, § 2, as amended by Acts 2007, ch. 85, § 1, effective July 1, 2010.

Effective Dates.

Acts 2012, ch. 862, § 2. May 1, 2012.

Section to Section References.

This section is referred to in § 70-7-203.

70-7-203. When liability of whitewater professional imposed.

Nothing in § 70-7-202 shall be construed to prevent or limit the liability of a whitewater professional, or any other person if the whitewater professional:

(1) Provided the equipment and knew or should have known that the equipment was faulty, and the equipment was faulty to the extent that it caused the injury;

(2) Owns, leases, rents, or otherwise is in the lawful possession and control of the land or facilities upon which the participant sustained injuries because of a dangerous latent condition that was known to the whitewater professional, or person and for which warning signs have not been conspicuously posted;

(3) Commits an act or omission that constitutes gross negligence or willful or wanton disregard for the safety of the participant, and the act or omission caused the injury; or

(4) Intentionally injures the participant.

HISTORY: Acts 2012, ch. 862, § 1.

NOTES: Compiler’s Notes.

For the Preamble to the act concerning the limitation of liability of those involved in whitewater activities, please refer to Acts 2012, ch. 862.

Former part 2, §§ 70-7-201 — 70-7-204 (Acts 2004, ch. 952, § 1), concerning white water rafting, was repealed ef-fective May 17, 2005, by Acts 2005, ch. 169, § 1, which also enacted present part 2, §§ 70-7-201 — 70-7-207, in its place.

Former Part 2, §§ 70-7-201 — 70-7-208 (Acts 2005, ch. 169, § 1), concerning the Tennessee White Water Rafting Responsibility Act, was repealed by Acts 2005, ch. 169, § 2, as amended by Acts 2007, ch. 85, § 1, effective July 1, 2010.

Effective Dates.

Acts 2012, ch. 862, § 2. May 1, 2012.

Section to Section References.

This section is referred to in § 70-7-202.

70-7-204. Warning notice.

(a) Every whitewater professional shall either post and maintain signs that contain the warning notice prescribed in subsection (d) or give the warning in writing to participants. The signs shall be placed in clearly visible locations on or near places where the whitewater professional conducts whitewater activities, if the places are owned, managed, or controlled by the professional.

(b) The warning notice specified in subsection (d) shall appear on the sign in black letters, with each letter to be a minimum of one inch (1”) in height.

(c) Every written contract entered into by a whitewater professional for the purpose of providing professional services, instruction, or the rental of equipment to a participant, whether or not the contract involves activities on or off the location or site of the whitewater professional’s business, shall contain in clearly readable print the warning notice specified in subsection (d).

(d) The signs and contracts described in subsection (a) shall contain the following warning notice:

WARNING

Pursuant to Tenn. Code Annotated title 70, chapter 7, part 2, a whitewater professional is not liable for an injury to or the death of a participant in whitewater activities resulting from the inherent risks of whitewater activities.

HISTORY: Acts 2012, ch. 862, § 1.

NOTES: Compiler’s Notes.

For the Preamble to the act concerning the limitation of liability of those involved in whitewater activities, please refer to Acts 2012, ch. 862.

Former part 2, §§ 70-7-201 — 70-7-204 (Acts 2004, ch. 952, § 1), concerning white water rafting, was repealed effective May 17, 2005, by Acts 2005, ch. 169, § 1, which also enacted present part 2, §§ 70-7-201 — 70-7-207, in its place.

Former Part 2, §§ 70-7-201 — 70-7-208 (Acts 2005, ch. 169, § 1), concerning the Tennessee White Water Rafting Responsibility Act, was repealed by Acts 2005, ch. 169, § 2, as amended by Acts 2007, ch. 85, § 1, effective July 1, 2010.

Effective Dates.

Acts 2012, ch. 862, § 2. May 1, 2012.

70-7-205. Written waivers, exculpatory agreements and releases.

Nothing in this part shall modify, constrict or prohibit the use of written waivers, exculpatory agreements or releases. This part is intended to provide additional limitations of liability for whitewater professionals, whether or not such agreements are used.

HISTORY: Acts 2012, ch. 862, § 1.

NOTES: Compiler’s Notes.

For the Preamble to the act concerning the limitation of liability of those involved in whitewater activities, please refer to Acts 2012, ch. 862.

Former part 2, §§ 70-7-201 — 70-7-204 (Acts 2004, ch. 952, § 1), concerning white water rafting, was repealed ef-fective May 17, 2005, by Acts 2005, ch. 169, § 1, which also enacted present part 2, §§ 70-7-201 — 70-7-207, in its place.

Former Part 2, §§ 70-7-201 — 70-7-208 (Acts 2005, ch. 169, § 1), concerning the Tennessee White Water Rafting Responsibility Act, was repealed by Acts 2005, ch. 169, § 2, as amended by Acts 2007, ch. 85, § 1, effective July 1, 2010.

Effective Dates.

Acts 2012, ch. 862, § 2. May 1, 2012.

WordPress Tags: Activities,Whitewater,Professionals,Chapter,Part,Tenn,Code,Written,waivers,agreements,limitations,HISTORY,Acts,NOTES,Compiler,Preamble,limitation,Former,Tennessee,White,Water,Effective,Dates,exculpatory


Tennessee Skier Safety Act

Tennessee Skier Safety Act

TENNESSEE CODE ANNOTATED

Title 68  Health, Safety and Environmental Protection 

Safety 

Chapter 114  Ski Area Safety and Liability Act

GO TO THE TENNESSEE ANNOTATED STATUTES ARCHIVE DIRECTORY

Tenn. Code Ann. § 68-114-101 (2012)

68-114-101.  Short title.

  This chapter shall be known and may be cited as the “Ski Area Safety and Liability Act.”

68-114-102.  Chapter definitions.

  As used in this chapter, unless the context otherwise requires:

   (1) “Industry” means generally the activities of all ski area operators;

   (2) “Passenger” means any person, while being transported or conveyed by a passenger tramway, or while waiting in the immediate vicinity for such transportation or conveyance, or while moving away from the disembarkation or unloading point of a passenger tramway to clear the way for the passengers following, or while in the act of boarding or embarking upon or disembarking from, a passenger tramway;

   (3) “Passenger tramway” means those devices described in American National Standards Institute Code § B 77.1 — 1973 and supplements to the code;

   (4) “Ski area” means all the ski slopes and ski trails and passenger tramways administered or operated as a single enterprise within this state;

   (5) “Ski area operator” means a person or organization having operational responsibility for any ski area, including an agency of this state or a political subdivision of this state; and

   (6) “Skier” means any person present in a ski area for the purpose of engaging in the sport of skiing, Nordic, freestyle or other types of ski jumping and who is using skis, a sled, a tube or a snowboard.

68-114-103.  Responsibility of skier and passenger.

  It is recognized that Alpine or downhill skiing as a recreational sport and the use of passenger tramways associated with Alpine or downhill skiing may be hazardous to skiers or passengers, regardless of all feasible safety measures that can be taken. Therefore, each skier and each passenger has the sole responsibility for knowing the range of the skier’s or passenger’s own ability to negotiate any slope, ski trail or associated passenger tramway, and it is the duty of each skier and passenger to conduct the skier or passenger within the limits of the skier’s or passenger’s own ability, to maintain control of the skier’s or passenger’s speed and course at all times while skiing, to heed all posted warnings and to refrain from acting in a manner that may cause or contribute to the injury of the skier or passenger or others. Except as otherwise specifically provided in this chapter, each skier or passenger is deemed to have assumed the risk of and legal responsibility for any injury to the skier’s or passenger’s person or property arising out of the skier’s or passenger’s participation in Alpine or downhill skiing or the use of any passenger tramways associated with Alpine or downhill skiing. The responsibility for collisions by any skier while actually skiing, with any person or object, shall be solely that of the skier or skiers involved in the collision and not that of the ski area operator.

8-114-104.  Violations.

  No passenger or skier shall:

   (1) Board or embark upon or disembark from a passenger tramway except at an area designated for that purpose;

   (2) Throw or expel any object from a passenger tramway;

   (3) Do any act that interferes with the running or operation of a passenger tramway;

   (4) Place any object in the uphill track of a surface lift that may cause a passenger to fall;

   (5) Except at designated locations, cross the uphill track of any surface lift; or

   (6) Ski on a slope or ski trail that has been designated “closed” as provided by this chapter.

68-114-105.  Tramways.

  The ski area operator shall have the primary responsibility for the design, construction, maintenance, and inspection of any passenger tramway. All passenger tramways shall be designed, constructed, and maintained in accordance with standards of the American National Standards Institute § B 77.1 — 1973 and supplements to the standards. The operation of a passenger tramway shall be deemed not to be the operation of a common carrier.

68-114-106.  Signs and designations.

  It is the duty of the ski area operator to maintain the following signs and designations:

   (1) Base Stations.  (A) A color code is established in accordance with the following:

         (i) Green circle — To designate the ski area’s least difficult trails and slopes;

         (ii) Black diamond — To designate the ski area’s most difficult trails and slopes;

         (iii) Blue square — To designate the ski area’s trails and slopes that fall between the green circle and black diamond designations;

         (iv) Yellow triangle with red exclamation point inside with a red band around the triangle — To designate danger areas; and

         (v) Octagonal shape with red border around white interior with a black figure in the shape of a skier inside with a black band running diagonally across the sign from the upper right hand side to the lower left hand side with the word “closed” beneath the emblem — To designate a closed trail or slope; and

      (B) A trail board shall be maintained at one (1) or more prominent locations at each ski area displaying that area’s network of ski trails and slopes, with each trail and slope rated on the board in accordance with the color code in subdivision (1)(A) and containing a key to the code in accordance with the designations in subdivision (1)(A). The trail board shall further designate which ski trails and slopes are open and their condition; and

   (2) Trails or Slopes.  (A) The ski area operator shall conspicuously mark the top of each trail or slope with the appropriate symbol for that particular trail’s or slope’s degree of difficulty in accordance with this chapter. Those portions of the trails or slopes that are of extra hazardous nature or are closed shall be marked at the top with the appropriate symbol; and

      (B) Whenever maintenance personnel or equipment is being employed upon any trail or slope while such trail or slope is open to the public, the ski area operator shall place, or cause to be placed, a conspicuous notice to that effect at or near the top of such trail or slope.

68-114-107.  Actions against ski area operators — Insurance.

  (a) Unless a ski area operator is in violation of this chapter or other state acts pertaining to ski areas, which violation is causal of the injury complained of, no action shall lie against any such operator by any skier or passenger or representative of a skier or passenger; this prohibition shall not, however, prevent the maintenance of an action against a ski area operator for negligent design construction, or operation maintenance of the passenger tramway itself.

(b) Each ski area operator shall maintain liability insurance with limits of not less than one million dollars ($1,000,000) per occurrence, except that the insurance need not be maintained with respect to passenger tramways not open to the general public, operated without charge to the users of the tramway. This exception shall not apply, however, to passenger tramways operated by schools, ski clubs and other similar organizations.

(c) No action shall be maintained against any ski area operator for injuries to any skier or passenger, unless the action is commenced within one (1) year from the time of injury; provided, that as a condition precedent to an action, the ski area operator shall be notified by registered mail within ninety (90) days of the injury as to the alleged violation of this chapter or other acts pertaining to ski areas, unless the court finds under the circumstances of the particular case that the operator or any of its employees either had actual knowledge of the injury or had a reasonable opportunity to learn of the injury within the ninety-day period, or was otherwise not substantially prejudiced by reason of not having been given actual written notice of the injury within the period; provided, that in any case where lack of written notice, actual knowledge, or a reasonable opportunity to obtain knowledge of any injury within the ninety-day period is alleged by a ski area operator, the burden of proof shall be on the operator to show that it was substantially prejudiced by the lack of written notice, actual knowledge or opportunity to obtain knowledge.

 

TENNESSEE CODE ANNOTATED

Title 68  Health, Safety and Environmental Protection 

Safety 

Chapter 121  Elevators, Dumbwaiters, Escalators, and Aerial Tramways

GO TO THE TENNESSEE ANNOTATED STATUTES ARCHIVE DIRECTORY

Tenn. Code Ann. § 68-121-101 (2012)

68-121-101.  Chapter definitions.

  As used in this chapter, unless the context otherwise requires:

   (1) “Aerial passenger tramways” means recreational transportation of passengers on devices that are usually referred to by the following names:

      (A) Reversible Aerial Tramways. That class of aerial passenger tramways and lifts in which the passengers are transported in carriers and are not in contact with the ground or snow surface, and in which the carriers reciprocate between terminals;

         (i) Single-Reversible Tramways. That type of reversible aerial tramway that has a single carrier, or single group of carriers, that moves back and forth between terminals on a single path of travel and is sometimes called “to-and-fro” aerial tramway; and

         (ii) Double-Reversible Tramways. That type of reversible aerial tramway that has two (2) carriers, or two (2) groups of carriers, that oscillate back and forth between terminals on two (2) paths of travel and is sometimes called “jig-back” tramway;

      (B) Aerial Lifts and Ski Mobiles. That class of aerial passenger tramways and lifts in which the passengers are transported in carriers and are not in contact with the ground or snow surface and in which the carriers circulate around a closed system and are activated by a wire rope or chain. The carriers usually make U-turns in the terminals and move along generally parallel and opposing paths of travel. The carriers may be open or enclosed cabins, cars, or platforms. The carriers may be fixed or detachable;

         (i) Gondola Lifts. That type of lift where the passengers are transported in open or enclosed cabins. The passengers embark and disembark while the carriers are stationary or moving slowly under a controlled arrangement;

         (ii) Chair Lifts. That type of lift where the passengers are transported in chairs, either open or partially enclosed;

         (iii) Ski Mobiles. That type of lift where the passengers are transported in open or enclosed cars that ride on a rigid structural system and are propelled by a wire rope or chain; and

         (iv) Similar Equipment. Lifts which utilize carrier configurations not specified in subdivision (1)(B)(i), (1)(B)(ii) or (1)(B)(iii), but do not require that the passenger remain in contact with the ground or snow surface;

      (C) Surface Lifts. That class of conveyance where the passengers are propelled by means of a circulating overhead wire rope while remaining in contact with the ground or snow surface. Transportation is limited to one (1) direction. Connection between the passengers and the wire rope is by means of a device attached to and circulating with the haul rope known as a “towing outfit”;

         (i) T-bar Lifts. That type of lift where the device between the haul rope and passengers forms the shape of an inverted “T,” propelling passengers located on both sides of the stem of the “T;”

         (ii) J-bar Lifts. That type of lift where the device between the haul rope and passenger is in the general form of a “J,” propelling a single passenger located on the one (1) side of the stem of the “J;”

         (iii) Platter Lifts. That type of lift where the device between the haul rope and passenger is a single stem with a platter or disc attached to the lower end of the stem, propelling the passenger astride the stem of the platter, or disc; and

         (iv) Similar Equipment. Lifts that utilize towing device configurations not specified in subdivision (1)(C)(i), (1)(C)(ii) or (1)(C)(iii), but require that passengers remain in contact with the ground or snow surface, and conform to the general description of this subdivision (1); and

      (D) Tows. That class of conveyance where the passengers grasp the circulating haul rope, a handle attached to the circulating haul rope, or attach a gripping device to the circulating haul rope and are propelled by the circulating haul rope. The passengers remain in contact with the ground or snow surface. The upward-traveling haul rope remains adjacent to the uphill track of the passengers and at an elevation that permits them to maintain their grasp on the haul rope, handle, or gripping device throughout that portion of the tow length that is designed to be traveled;

         (i) Fiber Rope Tow. A tow having a fiber, natural or synthetic, haul rope; and

         (ii) Wire Rope Tow. A tow having a metallic haul rope;

   (2) “Alteration” means any change or addition to the equipment other than ordinary repairs or replacement;

   (3) “Amusement device” means:

      (A) Any mechanical or structural device that carries or conveys a person, or that permits a person to walk along, around or over a fixed or restricted route or course or within a defined area, including the entrances and exits to the device, for the purpose of giving persons amusement, pleasure, thrills or excitement. “Amusement device” includes, but is not limited to, roller coasters, Ferris wheels, merry-go-rounds, glasshouses, and walk-through dark houses;

      (B) “Amusement device” also includes:

         (i) Any dry slide over twenty feet (20′) in height excluding water slides; and

         (ii) Any portable tram, open car, or combination of open cars or wagons pulled by a tractor or other motorized device, except hay rides, those used solely for transporting patrons to and from parking areas, or those used for guided or educational tours, but that do not necessarily follow a fixed or restricted course; and

      (C) “Amusement device” does not include the following:

         (i) Devices operated on a river, lake, or any other natural body of water;

         (ii) Wavepools;

         (iii) Roller skating rinks;

         (iv) Ice skating rinks;

         (v) Skateboard ramps or courses;

         (vi) Mechanical bulls;

         (vii) Buildings or concourses used in laser games;

         (viii) All terrain vehicles;

         (ix) Motorcycles;

         (x) Bicycles;

         (xi) Mopeds;

         (xii) Go karts;

         (xiii) Bungee cord or similar elastic device;

         (xiv) An amusement device that is owned and operated by a nonprofit religious, educational or charitable institution or association, if the device is located within a building subject to inspection by the state fire marshal or by any political subdivision of the state under its building, fire, electrical and related public safety ordinances; and

         (xv) An amusement device that attaches to an animal so that while being ridden the path of the animal is on a fixed or restricted path;

   (4) “Board” means the elevator and amusement device safety board, created in § 68-121-102;

   (5) “Commissioner” means the commissioner of labor and workforce development;

   (6) “Complete elevator, dumbwaiter or escalator” means any elevator, dumbwaiter or escalator for which the plans and specifications and the application for the construction permit required by § 68-121-108 are filed on or after the effective date of the application of the rules and regulations adopted by the board as provided in § 68-121-103(a)(2). All other elevators, dumbwaiters and escalators shall be deemed to be existing installations;

   (7) “Department” means the department of labor and workforce development;

   (8) “Dormant elevator, dumbwaiter or escalator” means an elevator or dumbwaiter whose cables have been removed, whose car and counterweight rest at the bottom of the shaftway, and whose shaftway doors are permanently boarded up or barricaded on the inside, or an escalator whose main power feed lines have been disconnected;

   (9) “Dumbwaiter” means a hoisting and lowering mechanism equipped with a car that moves in guides in a substantially vertical direction, the floor area of which does not exceed nine square feet (9 sq. ft.), whose total compartment height does not exceed four feet (4′), the capacity of which does not exceed five hundred pounds (500 lbs.), and that is used exclusively for carrying freight. “Dumbwaiter” does not include a dormant dumbwaiter;

   (10) “Elevator” means a hoisting and lowering mechanism equipped with a car or platform that moves in guides in a substantially vertical direction and that serves two (2) or more floors of a building. “Elevator” also includes stairway inclined lifts and platform lifts for transportation of handicapped persons;

   (11) “Escalator” means a moving inclined continuous stairway or runway used for raising or lowering passengers;

   (12) “Freight elevator” means an elevator used primarily for carrying freight and on which only the operator and the persons necessary for loading and unloading are permitted to ride;

   (13) “Moving walks” means a moving runway for transporting passengers, where the passenger transporting surface remains parallel to its direction of motion and is uninterrupted;

   (14) “Operator” means a person or the agent of a person who owns or controls, or has the duty to control, the operation of an amusement device or related electrical equipment;

   (15) “Owner” means a person that owns, leases, controls or manages the operations of an amusement device and may include the state or any political subdivision of the state;

   (16) “Passenger elevator” means an elevator that is used to carry persons other than the operator and persons necessary for loading and unloading.

   (17) “Qualified inspector” means any person who is:

      (A) Found by the commissioner to possess the requisite training and experience in respect to amusement devices to perform competently the inspections required by this chapter;

      (B) Certified by the National Association of Amusement Ride Safety Officials (NAARSO) to have and maintain at least a level one certification; or

      (C) Is a member of, and certified by, the Amusement Industry Manufacturing and Suppliers (AIMS) and meets the qualifications established by the board;

   (18) “Related electrical equipment” means any electrical apparatus or wiring used in connection with amusement devices;

   (19) “Safety rules” means the rules and regulations governing rider conduct on an amusement device pursuant to § 68-121-125;

   (20) “Serious incident” means any single incident where any person or persons are immediately transported to a licensed off-site medical care facility for treatment of an injury as a result of being on, or the operation of, the amusement device; and

   (21) “Serious physical injury” means a patron’s personal injury immediately reported to the owner or operator as occurring on an amusement device and that results in death, dismemberment, significant disfigurement or other significant injury that requires immediate in-patient admission and twenty-four-hour hospitalization under the care of a licensed physician for other than medical observation.


Tennessee Sales Representative

TENNESSEE CODE ANNOTATED

© 2013 by The State of Tennessee

All rights reserved

Title 47 Commercial Instruments And Transactions

Chapter 50 Miscellaneous Provisions

GO TO THE TENNESSEE ANNOTATED STATUTES ARCHIVE DIRECTORY

Tenn. Code Ann. § 47-50-114 (2012)

47-50-114. Sales representatives—Commissions.

(a) As used in this section:

(1) “Commission” means compensation accruing to a sales representative for payment by a principal, the rate of which is expressed as a percentage of the dollar amount of orders or sales;

(2) “Principal” means a person who:

(A) Manufactures, produces, imports, or distributes a product for wholesale;

(B) Contracts with a sales representative to solicit orders for the product; and

(C) Compensates the sales representative, in whole or in part, by commission;

(3) “Sales representative” means a person who contracts with a principal to solicit wholesale orders and who is compensated, in whole or in part, by commission, but does not include one who places orders or purchases for such person’s own account for resale; and

(4) “Termination” means the end of services performed by the sales representative for the principal whether by discharge, resignation, or expiration of a contract.

(b) (1) The terms of the contract between the principal and sales representative shall determine when a commission becomes due.

(2) If the time when the commission is due cannot be determined by a contract between the principal and sales representative, the past practices between the parties shall control or, if there are no past practices, the custom and usage prevalent in this state for the business that is the subject of the relationship between the parties shall control.

(3) All commissions that are due at the time of termination of a contract between a sales representative and principal shall be paid within fourteen (14) days after the date of termination. Commissions that become due after the termination date shall be paid within fourteen (14) days after the date on which the commissions become due.

(c) When the contract between a sales representative and a principal is terminated and the contract was not reduced to writing, all commissions due shall be paid within fourteen (14) days of termination.

(d) A principal who, acting in bad faith, fails to comply with the provisions of subsection (c) concerning timely payment may be liable in a civil action for exemplary damages in an amount which does not exceed treble the amount of the commissions owed to the sales representative. Additionally, such principal shall pay the sales representative’s reasonable attorney’s fees and court costs. If the court determines that an action to collect such exemplary damages has been brought on frivolous grounds, reasonable attorney’s fees and court costs shall be awarded to the principal.

(e) A principal who is not a resident of this state and who enters into a contract subject to this chapter is considered to be doing business in this state for purposes of the exercise of personal jurisdiction over the principal.

(f) A provision of this chapter may not be waived, whether by express waiver or by attempt to make a contract or agreement subject to the laws of another state. A waiver of a provision of this chapter is void.

(g) This chapter does not invalidate or restrict any other right or remedy available to a sales representative or preclude a sales representative from seeking to recover in one (1) action on all claims against a principal.

WordPress Tags: Tennessee,Sales,Representative,CODE,State,Title,Commercial,Instruments,Transactions,Chapter,Miscellaneous,Provisions,STATUTES,ARCHIVE,DIRECTORY,Tenn,Commissions,Commission,compensation,payment,percentage,dollar,Principal,person,Manufactures,product,Contracts,Compensates,account,Termination,resignation,expiration,custom,usage,relationship,faith,subsection,action,attorney,purposes,jurisdiction,provision,waiver,agreement,laws,whether


N.H., a minor child, v. Sequoyah Council, Inc., Boy Scouts of America, 2012 U.S. Dist. LEXIS 87452

N.H., a minor child, v. Sequoyah Council, Inc., Boy Scouts of America, 2012 U.S. Dist. LEXIS 87452

N.H., a minor child, by and through his parents Jorge Hernandez and Elizabeth Hernandez and Jorge Hernandez and Elizabeth Hernandez, Individually, v. Sequoyah Council, Inc., Boy Scouts of America

NO. 2:11-CV-171

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TENNESSEE

2012 U.S. Dist. LEXIS 87452

April 30, 2012, Filed

CORE TERMS: punitive damages, trail, gross negligence, recklessly, survive, failed to properly, bike, damages claim, reasonable inference, entitlement to relief’, plausibility, punitive, reckless, biking, summer camp, proximate cause, proximate result, mountain

COUNSEL: [*1] For Jorge Hernandez, Individually Minor N. H, Elizabeth Hernandez, Individually Minor N. H., Plaintiffs: Thomas C Jessee, Jessee & Jessee, Johnson City, TN.

For Sequoyah Council, Inc., Boy Scouts of America, defendant: Suzanne S Cook, LEAD ATTORNEY, Hunter, Smith & Davis – Johnson City, Johnson City, TN.

JUDGES: J. RONNIE GREER, UNITED STATES DISTRICT JUDGE.

OPINION BY: J. RONNIE GREER

OPINION

ORDER

This personal injury action is before the Court pursuant to 28 U.S.C. § 1332. Pending before the Court is the defendant’s motion to dismiss plaintiffs’ demand for punitive damages pursuant to Federal Rule of Civil Procedure 12(b)(6). [Doc. 5]. For the reasons which follow, the motion is GRANTED.

FACTS

The following facts are taken from plaintiffs’ Complaint and are assumed true for the purposes of defendant’s motion to dismiss. In June 2010, the minor plaintiff was registered by his parents to participate in a summer camp owned and operated by defendant in an attempt to earn merit badges towards becoming an Eagle Scout. On June 15, 2010, while at this summer camp, the minor plaintiff participated in a mountain biking activity/class sponsored by defendant. During the course of his participation, the minor plaintiff discovered [*2] that the brakes on his bike were not working, and he rode off the trail and struck a tree, sustaining severe bodily injuries.

The defendant was allegedly negligent as follows: (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.” [Doc. 1 at ¶19]. The Complaint also states that “the negligence of Defendant . . . was the proximate cause of the injuries to the minor plaintiff.” Id. at ¶20. The Complaint contains a number of additional paragraphs that allege how the “negligence” of the defendant was the proximate cause of various other consequences. Id. at ¶¶22-27. The final paragraph of the Complaint states, “As a proximate . . . result of the negligence of Defendant, the Plaintiffs have been damaged . . . in an amount not to exceed $600,000.00 actual damages. As a [*3] direct and proximate result of the gross negligence of the Defendant, the Plaintiffs believe they are entitled to recover punitive damages . . ..” Id. at ¶28 (emphasis added).

Defendant has filed a motion asking the Court to dismiss the Complaint so far as punitive damages are concerned on the ground that the plaintiffs have failed to adequately plead a factual basis that would provide for the award of punitive damages.

LEGAL STANDARD

Fed.R.Civ.P. 8(a) requires “a short and plain statement of the claims” that “will give the defendant fair notice of what the plaintiff’s claim is and the ground upon which it rests.” The Supreme Court has held that “[w]hile a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitlement to relief’ requires more than just labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007).

“To survive a motion to dismiss, a complaint must contain sufficient factual matter, [*4] accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. Thus, “only a complaint that states a plausible claim for relief survives a motion to dismiss.” Id. at 1950. When considering a motion to dismiss, the Court must accept all of the plaintiff’s allegations as true in determining whether a plaintiff has stated a claim for which relief could be granted. Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S. Ct. 2229, 81 L. Ed. 2d 59 (1984).

ANALYSIS

“In a diversity action . . . the propriety of an award of punitive damages for the conduct in question, and the factors the jury may consider in determining their amount, are questions of state law.” Browning-Ferris Indus. of Vt., Inc., v. Kelco Disposal, Inc., 492 U.S. 257, 278, 109 S. Ct. 2909, 106 L. Ed. 2d 219 (1989). Thus, to survive a motion to dismiss, a claim for punitive damages must be plausible as defined by Tennessee law.

The Tennessee Supreme Court has held that punitive damages are available in cases involving “only the most egregious of wrongs.” [*5] Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 (Tenn. 1992). Accordingly, under Tennessee law, “a court may . . . award punitive damages only if it finds a defendant has acted either (1) intentionally, (2) fraudulently, (3) maliciously, or (4) recklessly.” Id. 1

1 The Tennessee Supreme Court has expressly stated that punitive damages are not available for “gross negligence.” Hodges, 833 S.W.2d at 900-901. However, the legal sufficiency of a complaint does not depend upon whether or not the plaintiffs invoked the right “magic words,” but instead whether the facts as alleged may plausibly be construed to state a claim that meets the standards of Rule 12(b)(6). See Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009)(clarifying the dismissal standard under Rule 12(b)(6) and noting that “Rule 8 marks a notable and generous departure from the hyper-technical, code-pleading regime of a prior era”). Consequently, the Court will construe the plaintiffs’ allegations of “gross negligence” in paragraph 28 of the Complaint as an allegation that defendant behaved “recklessly.”

Here, defendant asserts that “Although the Complaint cursorily mentions ‘gross negligence’ one time in a conclusory manner, the Complaint [*6] lacks any facts or allegations that aver an utter lack of concern or reckless disregard such that a conscious indifference can even be implied . . ..” [Doc. 6 at 3]. The plaintiff counters that “The plaintiff in this case has identified specific detailed acts of negligence on the part of the defendant and . . . [consequently] it is clear that a jury could decide that the actions of the defendant were grossly negligent.” [Doc. 7 at 2].

The Court has reviewed the Complaint and agrees with the defendant. “Where a complaint pleads facts that are merely consistent with a defendant’s liability, it stops short of the line between possibility and plausibility of entitlement to relief. Iqbal, 556 U.S. at 678. Such is the case with the Complaint in this matter. The entirety of the Complaint is dedicated to explaining why the defendant was negligent. However, there is no separate mention made regarding why the defendant was reckless. To be sure, the plaintiff could argue that by alleging in multiple paragraphs that defendant “knew, or should have known,” of certain unsafe conditions, he has sufficiently pled both negligence and recklessness. However, plaintiff would be mistaken in asserting such [*7] argument.

Under Tennessee law, “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.” Hodges, 833 S.W.2d at 901. An examination of the Complaint reveals that plaintiffs have failed to allege how or why the defendant was aware of the deficiencies in the bicycle and the biking trail. This is fatal to plaintiffs’ claim for punitive damages. See Carrier Corp. v. Outokumpu Oyj, 673 F.3d 430, 445 (6th Cir. 2012) (“To survive a motion to dismiss . . . allegations must be specific enough to establish the relevant ‘who, what, where, when, how or why.”); See also, Tucker v. Bernzomatic, 2010 U.S. Dist. LEXIS 43771, 2010 WL 1838704 (E.D.Pa. May 4, 2010) (Dismissing punitive damages claim in products liability action because consumer did not allege how or why manufacturer knew that its product was dangerous).

In light of the foregoing, the Court concludes that the Complaint does not contain sufficient factual content to allow the Court to draw the reasonable inference that defendant has acted recklessly. [*8] See Iqbal, 556 U.S. at 678. The punitive damages claim will therefore be dismissed.

CONCLUSION

For the foregoing reasons, defendant’s motion to dismiss plaintiffs’ demand for punitive damages [Doc. 5] is GRANTED and plaintiffs’ demand for punitive damages is DISMISSED.

ENTER:

/s/ J. RONNIE GREER

UNITED STATES DISTRICT JUDGE

Enhanced by Zemanta

Four releases signed and all of them thrown out because they lacked one simple sentence!

Releases have to be written correctly and they have to be written in conjunction with all of the possible defendants to a suit.

This is a sad case stemming from the death of young man who had traveled from Ohio

Photograph of girls performing synchronized tr...

Photograph of girls performing synchronized trampoline at WAGC in Quebec November 2007. Trampqueen 21:52, 15 November 2007 (UTC) (Photo credit: Wikipedia)

to Tennessee to participate in a gymnastic event, the John Macready Flip Fest Invitational in Knoxville. The deceased was an experienced participant on the trampoline. During the event, he fell off the trampoline hitting the concrete floor with his head.

His parents sued the organizer of the event, Top Flight Gymnastics, the sanctioning organizations, USA Gymnastics (USAG) and the United States Gymnastics Federation (USGF). These three defendants, Top Flight, USAG and USGF as well as the booster club for Top Flight had releases that were signed by the deceased and or his mother or father.
The deceased mother stated she signed the release for the event in Kentucky. (No explanation was given why she signed the release in Kentucky.) The USGF and USAG releases were part of membership applications and probably signed in Ohio. It was not stated where the Top Flight release was signed.
The deceased and the plaintiffs lived in Ohio. USAG and USGF were based in Indiana but sanctioned events all over the US. Top Flight was located in Tennessee where the accident occurred.
The defendants filed a motion for summary judgment arguing that the release should be reviewed under Ohio’s law. The reason for this is because Ohio upholds a release signed by a parent. (See States that allow a Parent to Sign away a Minor’s right to sue.) The court fist had to determine what law applied, Ohio or Tennessee. No one was arguing for Kentucky or Indiana. Neither of those states allows a parent to sign away a minor’s right to sue.
The plaintiffs sued for negligence “in that they sanctioned an event which failed to provide a safe environment, utilized untrained spotters, failed to ensure sufficient floor matting, failed to require experienced and trained spotters, and failed to require sufficient safety matting.”

Summary of the case

This case was brought in Federal District Court as a diversity case. That means that one or more of the parties is located outside of the state of where the lawsuit is filed and the amount being asked for is in excess of $75,000.  
The Federal Court had to decide which law would be applied to the case. This is called a “Choice of Laws” issue, meaning the court has to decide which state law will be used to decide the case. Step one in this decision, is to decide which states have a relationship with the lawsuit. How that decision is made is based on the law of the state where the court is. The case was filed in the United States District Court for the Eastern District of Tennessee, so Tennessee’s law was used to decide which state law would be used to the Choice of Law question which then would be used to decide which state law would be applied to the case.
In Tennessee, the test to decide which state law is to be applied is the “the most significant relationship” test.
In an action for wrongful death, the local law of the state where the injury occurred determines the rights and liabilities of the parties unless, with respect to the particular issue, some other state has a more significant relationship under the principles stated in § 6 to the occurrence and the parties, to which event the local law of the other state will be applied.
The court ruled that because the accident occurred in Tennessee, Tennessee had the most significant relationship to the case. The court applied the four-part Tennessee test to make that decision. The court looked at the following questions to determine what state law would be applied:
(1) the place where the injury occurred,
(2) the place where the conduct causing the injury occurred,
(3) the domicile, residence, nationality, place of incorporation and place of business of the parties, and
(4) the place where the relationship, if any, between the parties is centered.
Tennessee was where the injury occurred, the place where the conduct causing the injury occurred. Tennessee “was the only mutual and central contact these parties had with one another.”
The court then looked at Tennessee’s law concerning releases and held all four releases void. Tennessee does not recognize a parent’s right to sign away a minor’s right to sue. Childress v. Madison County, 777 S.W.2d 1 (Tenn.App. 1989). The decision, on what state law to apply, decided the real legal issue in one sentence.
Of the four states in question, Tennessee, Indiana, Kentucky and Ohio, only if the choice of a law’s question had found Ohio, the place where two releases had been signed, would the case end. Simply put, the case would have ended if the court could have applied Ohio’s law to the facts.
The court then took on an interesting turn. The court stated, on its own, that the release also failed because the allegations of the complaint pleaded intentional conduct recklessness or gross negligence. Under Tennessee law gross negligence and reckless conduct are not protected by a release. The court then said, “defendants’ failure to provide a safe environment, failure to utilize trained spotters, and failure to ensure sufficient safety matting, all constitute gross negligence and reckless conduct.”
Rarely do courts look at the facts and then develop claims or defenses for one side or the other. Here, the court did just that. The court created additional claims for the plaintiff. Nowhere else in the decision did the court allude to allegations on the part of the plaintiffs whom any of the defendants acted a grossly negligent way.

So Now What?

I’ve written about it several times before about jurisdiction and venue. See A Recent Colorado Supreme Court Decision lowers the requirements to be brought into the state to defend a lawsuit, The legal relationship created between manufactures and US consumers and Shark Feeding Death triggers debate. Jurisdiction is the term applied to the law that is to be applied to the case. This case is a legal argument over jurisdiction. Venue is the legal term used to describe where, what city and state the court that hears the case will be.
Releases must first have the correct language to make the release effective in barring claims and lawsuits. It must have a well written negligence clause.
However, if your release does not have a jurisdiction and venue clause, just like this case, your release is worthless a lot of the time. If anyone can change the venue to another state, and/or change the jurisdiction to another state you have just wasted paper.
As I repeat over and over again.
1.      Your release must be written by an attorney who is familiar with your activities and the law concerning releases.
2.    Your release must have a well written negligence clause. It must, according to the state law of the jurisdiction you decide, meet the requirements to be upheld.
3.    Your release must have a jurisdiction and venue clause. Period!
If you wrote your release I now it fails the first and second parts of the test. I suspect even if an attorney wrote your release, it might fail the third part of the test.

What do you think? Leave a comment.

Copyright 2011 Recreation Law (720) Edit Law, Recreation.Law@Gmail.com
Twitter: RecreationLaw
Facebook: Rec.Law.Now
#RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #Ski.Law, #Outside.Law, #Recreation.Law, #Recreation-Law.com, #Outdoor Law, #Recreation Law, #Outdoor Recreation Law, #Adventure Travel Law, #law, #Travel Law, #Jim Moss, #James H. Moss, #Attorney at Law, #Tourism, #Adventure Tourism, #Rec-Law, #Rec-Law Blog, #Recreation Law, #Recreation Law Blog, #Risk Management, #Human Powered, #Human Powered Recreation,# Cycling Law, #Bicycling Law, #Fitness Law, #Recreation-Law.com, #Backpacking, #Hiking, #Mountaineering, #Ice Climbing, #Rock Climbing, #Ropes Course, #Challenge Course, #Summer Camp, #Camps, #Youth Camps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, #RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #SkiLaw, #Outside.Law, #Recreation.Law, #RecreationLaw.com, #OutdoorLaw, #RecreationLaw, #OutdoorRecreationLaw, #AdventureTravelLaw, #Law, #TravelLaw, #JimMoss, #JamesHMoss, #AttorneyatLaw, #Tourism, #AdventureTourism, #RecLaw, #RecLawBlog, #RecreationLawBlog, #RiskManagement, #HumanPowered, #HumanPoweredRecreation,# CyclingLaw, #BicyclingLaw, #FitnessLaw, #RecreationLaw.com, #Backpacking, #Hiking, #Mountaineering, #IceClimbing, #RockClimbing, #RopesCourse, #ChallengeCourse, #SummerCamp, #Camps, #YouthCamps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, #Trampoline, #Indiana, #Tennessee, #Ohio, #TN, #OH, #TopFlightGymnastics, #USAGymnastics #USAG, #UnitedStatesGymnasticsFederation #USGF, #TopFlightGymnasticsTeam,

WordPress Tags: Four,Bonne,Premier,Athletics,Dist,LEXIS,Releases,conjunction,defendants,death,Ohio,Tennessee,event,John,Macready,Flip,Fest,Invitational,Knoxville,participant,parents,organizer,Gymnastics,USAG,States,Federation,USGF,booster,Kentucky,explanation,membership,plaintiffs,Indiana,events,accident,judgment,Parent,Sign,Minor,fist,Neither,negligence,environment,Summary,Federal,District,Court,lawsuit,Choice,Laws,Step,decision,relationship,Eastern,action,injury,liabilities,occurrence,domicile,residence,incorporation,Madison,Tenn,allegations,complaint,Under,failure,Here,plaintiff,Nowhere,jurisdiction,venue,Recent,Colorado,Supreme,requirements,consumers,Shark,argument,lawsuits,clause,paper,attorney,Period,Leave,Recreation,Edit,Gmail,Twitter,RecreationLaw,Facebook,Page,Outdoor,Adventure,Travel,Blog,Mobile,Site,Keywords,Outside,Moss,James,Tourism,Risk,Management,Human,Rock,Ropes,Course,Challenge,Summer,Camp,Camps,Youth,Areas,SkiLaw,OutdoorLaw,OutdoorRecreationLaw,AdventureTravelLaw,TravelLaw,JimMoss,JamesHMoss,AttorneyatLaw,AdventureTourism,RecLaw,RecLawBlog,RecreationLawBlog,RiskManagement,HumanPoweredRecreation,CyclingLaw,BicyclingLaw,FitnessLaw,RopesCourse,ChallengeCourse,SummerCamp,YouthCamps,Trampoline,TopFlightGymnastics,USAGymnastics,UnitedStatesGymnasticsFederation,TopFlightGymnasticsTeam,spotters