Henderson v. Quest Expeditions, Inc. 174 S.W.3d 730; 2005 Tenn. App. LEXIS 334
Nathan & Brandy Henderson v. Quest Expeditions, Inc.
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
[*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.
This list is not guaranteed to be accurate. The information is found from web searches and news dispatches. Those references are part of the chart. If you have a source for information on any fatality please leave a comment or contact me. Thank you.
If this information is incorrect or incomplete please let me know. This is up to date as of August 14, 2013. Thanks.
Rafting, Mountaineering and other summer sports are probably still safer than your kitchen or bathroom. This information is not to scare you away from any activity but to help you understand the risks and to study.
Red is a probable death due to medical issues.
Dark blue is a death of an employee while working.
Kenai Peninsula’s Six Mile Creek, Zig Zag Rapid
washed out of a boat filled with clients and a guide as they entered rapid
|6/8||Whitewater Rafting||TN||Chattooga River||boat flipped||58||M||Nashville, TN|
|6/20||Mountaineering||WY||Lower Saddle of the Grand Teton||slipped on snowfield and slid||55||M||Colorado Springs, CO|
|7/3||Summer Camp||CA||Camp Tawonga||Tree fell||21||F||Santa Cruz, CA||http://rec-law.us/16RpK3K & http://rec-law.us/124h7TI|
|7/6||Whitewater Rafting||PA||Youghiogheny River, Ohiopyle State Park||Foot entanglement with rope||22||M||Lancaster, PA||http://rec-law.us/12dNcIz & http://rec-law.us/1btCuRC|
|7/9||Summer Camp||UT||Mt. Dell Scout Ranch, UT||Run over by flat bed truck||14||M||Cedar Hills, UT||http://rec-law.us/159p1tz|
|8/14||Whitewater Rafting||WV||New River, WV||washed out of boat into “meat grinder” area||16||M||Germany||http://rec-law.us/1dfgQl8|
|8/24||Whitewater Rafting||TN||Ocoee River, TN||fell out in Grumpy’s rapid||52||F||Rex, GA||http://rec-law.us/17fRPnc & http://rec-law.us/1dJZYTU|
|8/25||Whitewater Rafting||TN||Ocoee River, TN||fell out in Grumpy’s rapid||36||F||Smyrna, TN||http://rec-law.us/17fRPnc & http://rec-law.us/12FJFmh|
Our condolences go to the families of the deceased. Our thoughts extend to the families and staff at the areas who have to deal with these tragedies.
Overall it has been a low fatality year!
What do you think? Leave a comment.
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#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, sport and recreation laws, ski law, cycling law, Colorado law, law for recreation and sport managers, bicycling and the law, cycling and the law, ski helmet law, skiers code, skiing accidents, Recreation Lawyer, Ski Lawyer, Paddlesports Lawyer, Cycling Lawyer, Recreational Lawyer, Fitness Lawyer, Rec Lawyer, Challenge Course Lawyer, Ropes Course Lawyer, Zip Line Lawyer, Rock Climbing Lawyer, Adventure Travel Lawyer, Outside Lawyer, Recreation Lawyer, Ski Lawyer, Paddlesports Lawyer, Cycling Lawyer, #RecreationalLawyer, #FitnessLawyer, #RecLawyer, #ChallengeCourseLawyer, #RopesCourseLawyer, #ZipLineLawyer, #RockClimbingLawyer, #AdventureTravelLawyer, #OutsideLawyer, Whitewater Rafting, Mountaineering, Exum Mountain Guides, NOVA Alaska, Wildwater Ltd, Youghiogheny River, entanglement, Kenai Peninsula’s Six Mile Creek, Zig Zag Rapid, Chattooga River, Jawbone rapid, Lower Saddle of the Grand Teton, Camp Tawonga, Swimmers Rapids, Summer Camp, BSA, Boy Scouts of America, Ohiopyle State Park, Ocoee River, TN, Tennesee,
Tennessee Skier Safety Act
TENNESSEE CODE ANNOTATED
Title 68 Health, Safety and Environmental Protection
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.
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.
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
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;
(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;
(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.
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
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
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.
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.
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).
“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.
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.
/s/ J. RONNIE GREER
UNITED STATES DISTRICT JUDGE