Indemnification fails again in a release. Parent of child having a birthday at climbing gym signed release for the injured child, not her own child.

Indemnification is rarely if upheld in a release. The language does not meet the requirements needed under the law in most states to be an indemnification agreement.

Cannon v. Rock Climb Fairfield, LLC, 2020 Conn. Super. LEXIS 261

State: Connecticut, Superior Court of, Judicial District of Fairfield At Bridgeport

Plaintiff: Cindy Cannon PPA Emma Cannon

Defendant: Rock Climb Fairfield, LLC, Carabiners Fairfield, LLC and Matthew Conroy

Plaintiff Claims: Negligence

Defendant Defenses: Indemnification by third party

Holding: for the Plaintiff

Year: 2020

Summary

Connecticut climbing gym had mother of a group of girls at a gym for a birthday party sign release for all the girls. After one of the girls was injured and sued, the climbing gym attempted to recover money from the mother who signed the release based on the language of the release in its indemnification clause. That failed.

If failed so badly the court voided the entire release finding it to be an adhesion contract.

Indemnification agreements in releases never work to recover damages from an injured plaintiff.

Facts

We are never made aware of the facts that gave rise to the injury that created this decision. However, since the issue is solely who is liable under contract (release) for the injury it is not really relevant.

The case arises from an incident where the minor plaintiff, Emma Cannon, fell from a climbing wall at the Rock Climb defendant’s indoor rock climbing facility located in Fairfield, Connecticut. The minor plaintiff claims she sustained personal injuries. On behalf of her minor child, Cindy Cannon instituted the present action alleging the facility, its agents and employees were negligent in supervising the rock climbing activities, thereby causing the minor plaintiff’s injuries. The defendants have filed an answer and eight special defenses to the amended complaint.

Thereafter, the Rock Climb defendants filed an apportionment complaint against the defendant Kate Licata, who brought the minor plaintiff, Emma Cannon, and several other girls to the facility for a group birthday party event. The apportionment complaint is dated February 6, 2019.4 The apportionment complaint alleges that Licata was negligent in numerous ways and seeks an apportionment of liability and damages as to Licata for the percentage of negligence attributable to her. The apportionment complaint is not the subject of the motion for summary judgment that is presently before the court. The Rock Climb defendants also filed a cross claim against Licata alleging contractual and common-law indemnity. The cross claim, which is the subject of Licata’s motion for summary judgment, is dated February 22, 2019.

So, the parent of the birthday child signed releases for the children attending the birthday party. When one child was injured and sued the climbing gym, the climbing gym brought the parent who signed the release into the lawsuit based on the indemnification language in the releases she signed.

The release was signed electronically; however, this was not an issue the court seemed interested in looking at.

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

The cross claim alleges that the Rock Climb defendants, who are the third-party plaintiffs, require all invitees to its facility to complete a “Release of Liability and Assumption of Risk” form before participating in rock climbing activities. If the participant is a minor, the form must be signed by the minor’s parent or court-appointed guardian, which Licata was not.

The defendant climbing gym filed a motion for summary judgement arguing the mother should be liable for any damages they pay out on behalf of the injured minor child. This was based on two legal theories the first was the indemnification language found in the release itself.

The release form contains language to the effect that the parent or guardian of the minor has explained the inherent risks of the activity to the minor and the minor understands the said risks and that the minor, nonetheless, wishes to participate in the activities. The release form further provides that “the parent of the minor visitor . . . forever discharge, and agree to indemnify . . . Carabiners Fairfield, LLC, its agents, owners, officers, volunteers, employees, and all other persons or entities acting in any capacity on its behalf . . . from any and all claims, suits, demands, causes of action, which are in any way connected with my or the minor visitor’s visit to the RCF activity site . . . My agreement of indemnity is intended to include claims arising out of losses suffered by me (an adult climber or parent) or the child and losses caused by me or the child. The agreements of indemnity and release include claims of negligence . . . of a Released Party.” The Rock Climb defendants allege that Licata completed an online version of the Release form and electronically signed it on behalf of the minor plaintiff Emma Cannon on October 3, 2016. Thus, Licata is contractually obligated to defend and indemnify the Rock Climb defendants for the injuries and damages resulting from Emma Cannon’s fall at the Rock Climb defendants’ facility pursuant to General Statutes §52-102a.5

The second defense or reason why the mother should be liable was based on common-law indemnification.

The Rock Climb defendants also allege Licata is liable for common-law indemnification, claiming that any injuries sustained by the minor plaintiff were proximately caused, in whole or part, by Licata’s negligence and carelessness in multiple ways. Among these allegations are failing to supervise and monitor the minor; failing to instruct the minor; and failing to warn the minor of the dangerous nature and risks of the activity. Lastly, the Rock Climb defendants argue that a substantial amount of discovery remains outstanding and various issues of fact are yet to be settled, and therefore, it argues that Licata’s summary judgment motion should be denied.

To succeed on an indemnification agreement the court found under Connecticut law the defendant climbing gym must show the following.

A party may bring an indemnification claim based on the terms of an indemnity agreement . . . [A]llegations of contractual indemnification must be supported by the terms of the contract or the contract itself . . . Under Connecticut law, to state a contract-based indemnification claim, the claimant must allege either an express or implied contractual right to indemnification . . . There is no requirement that a party seeking indemnification must assert allegations of exclusive control (or any of the other elements of a claim for indemnification based on active-passive negligence) in order to state a legally sufficient claim for contractual indemnification.

An indemnification agreement in Connecticut has four elements.

“The essential elements for a cause of action based on breach of contract are (1) the formation of an agreement, (2) performance by one party, (3) breach of the agreement by the opposing party, and (4) damages . . . [and] causation.”

The plaintiff argued that the entire release was void because of two prior Connecticut court decisions.

Lastly, the Reardon court noted that the release that the plaintiff signed broadly indemnifying the defendants from liability for damages resulting from the defendants’ own negligence was a classic contract of adhesion of the type that this court found to be in violation of public policy in Hanks.

(See Reardon v. Windswept Farm, LLC, et al., 280 Conn. 153; 905 A.2d 1156; 2006 Conn. LEXIS 330
and
States that do not Support the Use of a Release.)

The release stated the mother who signed the release knew that “the defendants’ [facilities or equipment] were maintained in a reasonably safe condition. The court found this to be utterly bogus (as do I). The mother had no knowledge or experience rock climbing and no clue, whether the facility was in good condition.

To the contrary, it was the defendants, not the plaintiff or the other customers, who had the “expertise and opportunity to foresee and control hazards, and to guard against the negligence of their agents and employees. They alone [could] properly maintain and inspect their premises, and train their employees in risk management.” In particular, the defendants acknowledged that they were responsible for providing their patrons with safe horses, qualified instructors, as well as properly maintained working equipment and riding surfaces.

This was the same position a Connecticut court in Hanks v. Powder Ridge Restaurant Corporation et al., 276 Conn. 314; 885 A.2d 734; 2005 Conn. LEXIS 500, that the requirements in the release were absurd because the knowledge necessary to know and understand if the activity was safe or the equipment was in good working order was solely within the knowledge and experience of the defendant.

As we concluded in Hanks, it is illogical to relieve the defendants, as the party with greater expertise and information concerning the dangers associated with engaging in horseback riding at their facility, from potential claims of negligence surrounding an alleged failure to administer properly the activity.

The court then, using the issue of the ability of the mother who signed the release to contract about the equipment found the release to be a contract of adhesion.

Specifically, we have noted that the most salient feature of adhesion contracts is that they are not subject to the normal bargaining processes of ordinary contracts, and that they tend to involve a standard form contract prepared by one party, to be signed by the party in a weaker position, usually a consumer, who has little choice about the terms.

The issue of whether or not the release was an adhesion contract had been touched on lightly; however, the court eventually unloaded on the defendant finding the release to be a contract of adhesion, which voids releases in most states.

…that the release that the plaintiff signed broadly indemnifying the defendants from liability for damages resulting from the defendants’ own negligence was a classic contract of adhesion of the type that this court found to be in violation of public policy in Hanks.

Most states look at recreation, and since it is not a necessity, something needed for the modern survival of a person or family as not being contacts of adhesion. However, in Connecticut, there is no review of why the release is signed, just a review of the specific language in the release to determine if it is an adhesion contract.

The court then looked at the release under the requirements of the Connecticut Supreme Court and found the release lacking as well as the indemnification language in the release.

In the present case, the defendant’s facility was open to the general public regardless of a patron’s experience level. The minor plaintiff was a ten-year-old female. The defendants have admitted that they provided instruction to the group of minors attending the birthday celebration at the defendants’ facility. Neither the minor plaintiff or Licata provided any of the equipment to be used. Licata, herself, did not provide training, guidance or supervision to the minors, including the minor plaintiff. Licata possessed no special knowledge regarding rock climbing or bouldering activities including training and safety procedures other than an initial orientation by RCF employees. Maklad testified at her deposition that the orientation lasted only five to ten minutes. The RCF defendants/third-party plaintiffs admit that there was zero expectation that Licata would “train and guide climbers” or to inspect various facility equipment. RCF argues that they did expect that parents and guardians would supervise children. Thus, there is a question of fact as to whether or not Licata was adequately supervising the minor plaintiff Cannon when she fell. The court disagrees.

And then tore the release apart based on the lack of bargaining power between the parties.

In this case, signing the release provided by RCF was required as a condition of the plaintiff’s participation in the bouldering and rock climbing activities at the RCF facility. There was no opportunity for negotiation by the plaintiff, and if she was unsatisfied with the terms of the release, her only option was to not to allow the minor guests who accompanied her to the birthday party to participate. Licata had no bargaining power with respect to the negotiation of the release and in order to participate in the activity, she was required to assume the risk of the defendants’ negligence. “This condition of participation violates the stated public policy of our tort system because the plaintiff was required to bear an additional risk despite her status as a patron who was not in a position to foresee or control the alleged negligent conduct that she was confronted with, or manage and spread the risk more effectively then the defendants.”

The court then looked at the common-law indemnification argument of the climbing gym. For one party to hold the other party liable under common law, the following facts must be in place.

(1) the third party against whom indemnification is sought was negligent; (2) the third party’s active negligence, rather than the defendant’s own passive negligence, was the direct, immediate cause of the accident and the resulting harm; (3) the third party was in control of the situation to the exclusion of the defendant seeking reimbursement; and (4) the defendant did not know of the third party’s negligence, had no reason to anticipate it, and reasonably could rely on the third party not to be negligent.”

Just looking at these requirements at a climbing wall, you know the mother of a child hosting a birthday party, there is not going to meet any of these requirements.

The defendant climbing wall could not produce any evidence that the mother was in exclusive control of the situation to the exclusion of all others.

The mother’s motion for summary judgment was granted, and the plaintiff’s indemnification claims failed.

So Now What?

Overall, the language in this release did not meet Connecticut law on many counts. However, the court found the language to be so one-sided and so bad that if found multiple ways to void it. Releases must be written for the activity, the guests and the law of the state where the release will be used. When you have a state like Connecticut, where releases are always on a thing line between valid and void, the language is critical to succeed.

Indemnification claims in a release have never worked. The only way that the claims may work, would be against third parties when the liability is created by the guest. An example of something like that might be a guest on a trip starts a forest fire. The special-use permit or concession agreement generally holds the outfitter/permittee/concessionaire liable for the damages caused by the fire. The indemnification clause might work in that situation to recover some of the money to reimburse the outfitter.

(Always make sure your outfitter liability policy provides coverage for actions to third parties by your guests.)

However, I have never found a case where indemnification has worked to recover damages for an injury from parents, friends or the leader of the group of kids. Maine looked at the language of indemnification in a release and seemed to indicate it would be supported if written correctly. See Maine follows the majority and does not allow a parent to sign away a minor’s right to sue.

The situation that created this mess is classic. A group of kids is coming to your business or program, and no one has notified the parents of a requirement to sign a release in advance. Upon arrival, someone who does not know or understand or a facility that does not care just has the adult with the kids sign the paperwork. That does not work.

Either get the parent’s signatures on documents or spend most of the time creating an assumption of the risk defense by educating the kids.

Don’t waste the paper or electrons having a youth leader or mother responsible of the group sign the release for the rest of the children in attendance. It just does not work.

This will be the fourth article I’ve written about Connecticut courts voiding releases. If you work or operate in Connecticut you are probably working in a state that does not support the use of a release.

For more information about indemnification see:

Indemnification agreements? What are you signing?

Indemnification between businesses requires a contract outlining the type of indemnification and a certificate of insurance from one party to the other so the insurance company knows it is on the hook

What do you think? Leave a comment.

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Cannon v. Rock Climb Fairfield, LLC, 2020 Conn. Super. LEXIS 261

Cannon v. Rock Climb Fairfield, LLC, 2020 Conn. Super. LEXIS 261

Superior Court of Connecticut, Judicial District of Fairfield At Bridgeport

February 13, 2020, Decided; February 13, 2020, Filed

FBTCV186079642S

Reporter

2020 Conn. Super. LEXIS 261 *

Cindy Cannon PPA Emma Cannon v. Rock Climb Fairfield, LLC et al.

Notice: THIS DECISION IS UNREPORTED AND MAY BE SUBJECT TO FURTHER APPELLATE REVIEW. COUNSEL IS CAUTIONED TO MAKE AN INDEPENDENT DETERMINATION OF THE STATUS OF THIS CASE.

Prior History: Cannon v. Rock Climb Fairfield Llc, 2019 Conn. Super. LEXIS 1819 (Conn. Super. Ct., Feb. 11, 2019)

Judges:  [*1] Richard E. Arnold, Judge Trial Referee.

Opinion by: Richard E. Arnold

Opinion

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT #142

The third-party defendant Kate Licata has moved for summary judgment on Counts One and Two of the Cross Complaint filed by the defendants third-party plaintiffs, Rock Climb Fairfield, LLC, Carabiners Fairfield, LLC and Matthew Conroy.1 Count One of the cross complaint alleges contractual indemnification and Count Two alleges common-law indemnification. The cross complaint is dated February 22, 2019. The third-party defendant Licata’s motion for summary judgment is dated September 9, 2019. The defendant third-party plaintiff’s objection is dated October 14, 2019.2 Licata’s reply to the objection is dated October 17, 2019. The court heard oral argument on October 21, 2019.

The case arises from an incident where the minor plaintiff, Emma Cannon, fell from a climbing wall at the Rock Climb defendant’s indoor rock climbing facility located in Fairfield, Connecticut. The minor plaintiff claims she sustained personal injuries. On behalf of her minor child, Cindy Cannon instituted the present action alleging the facility, its agents and employees were negligent in supervising the rock [*2]  climbing activities, thereby causing the minor plaintiff’s injuries.3 The defendants have filed an answer and eight special defenses to the amended complaint.

Thereafter, the Rock Climb defendants filed an apportionment complaint against the defendant Kate Licata, who brought the minor plaintiff, Emma Cannon, and several other girls to the facility for a group birthday party event. The apportionment complaint is dated February 6, 2019.4 The apportionment complaint alleges that Licata was negligent in numerous ways and seeks an apportionment of liability and damages as to Licata for the percentage of negligence attributable to her. The apportionment complaint is not the subject of the motion for summary judgment that is presently before the court. The Rock Climb defendants also filed a cross claim against Licata alleging contractual and common-law indemnity. The cross claim, which is the subject of Licata’s motion for summary judgment, is dated February 22, 2019.

The cross claim alleges that the Rock Climb defendants, who are the third-party plaintiffs, require all invitees to its facility to complete a “Release of Liability and Assumption of Risk” form before participating in rock climbing [*3]  activities. If the participant is a minor, the form must be signed by the minor’s parent or court-appointed guardian, which Licata was not. The release form contains language to the effect that the parent or guardian of the minor has explained the inherent risks of the activity to the minor and the minor understands the said risks and that the minor, nonetheless, wishes to participate in the activities. The release form further provides that “the parent of the minor visitor . . . forever discharge, and agree to indemnify . . . Carabiners Fairfield, LLC, its agents, owners, officers, volunteers, employees, and all other persons or entities acting in any capacity on its behalf . . . from any and all claims, suits, demands, causes of action, which are in any way connected with my or the minor visitor’s visit to the RCF activity site . . . My agreement of indemnity is intended to include claims arising out of losses suffered by me (an adult climber or parent) or the child and losses caused by me or the child. The agreements of indemnity and release include claims of negligence . . . of a Released Party.” The Rock Climb defendants allege that Licata completed an online version of the Release [*4]  form and electronically signed it on behalf of the minor plaintiff Emma Cannon on October 3, 2016. Thus, Licata is contractually obligated to defend and indemnify the Rock Climb defendants for the injuries and damages resulting from Emma Cannon’s fall at the Rock Climb defendants’ facility pursuant to General Statutes §52-102a.5

The Rock Climb defendants also allege Licata is liable for common-law indemnification, claiming that any injuries sustained by the minor plaintiff were proximately caused, in whole or part, by Licata’s negligence and carelessness in multiple ways. Among these allegations are failing to supervise and monitor the minor; failing to instruct the minor; and failing to warn the minor of the dangerous nature and risks of the activity. Lastly, the Rock Climb defendants argue that a substantial amount of discovery remains outstanding and various issues of fact are yet to be settled, and therefore, it argues that Licata’s summary judgment motion should be denied.

The plaintiff cross claim defendant, Licata, argues that the defendants cross claim plaintiffs’ claims are void as against public policy as a result of the decision in Hanks v. Powder Ridge Restaurant Corp., 276 Conn. 314, 885 A.2d 734 (2005), [*7]  regarding any waiver signed by Licata, and any waiver signed by Licata was a contract of adhesion. Licata argues that she was not given any opportunity to negotiate the terms of the Release document, which was presented to her on a “take or leave it” basis. It was the Rock Climb defendants who were responsible for training Licata and/or the minor plaintiff to ensure safe rock climbing, as Licata claims she did not possess the knowledge, experience or authority to ensure the rock climbing facility was in a safe condition. Additionally, Licata argues she was not in control of the situation on the date in question, and the cross claim does not even allege she was in control of the situation. Therefore, any claim for common-law indemnification also fails as a matter of law.

I

Summary Judgment

The legal standard governing summary judgment motions is well settled. Summary judgment “shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Practice Book §17-49. “A material fact is a fact that will make a difference in the result of the case . . . The facts [*8]  at issue are those alleged in the pleadings.” (Internal quotation marks omitted.) Morrissey-Manter v. Saint Francis Hospital & Medical Center, 166 Conn.App. 510, 517, 142 A.3d 363, cert. denied, 323 Conn. 924, 149 A.3d 982 (2016). Moreover, “[a] genuine issue has been variously described as a triable, substantial or real issue of fact . . . and has been defined as one which can be maintained by substantial evidence . . . Hence, the genuine issue aspect of summary judgment procedure requires the parties to bring forward before trial evidentiary facts, or substantial evidence outside the pleadings, from which the material facts alleged in the pleadings can warrantably be inferred.” (Internal quotation marks omitted.) Rickel v. Komaromi, 144 Conn.App. 775, 790-91, 73 A.3d 851 (2013).

“The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law.” (Internal quotation marks omitted.) St. Pierre v. Plainfield, 326 Conn. 420, 426, 165 A.3d 148 (2017). “Because litigants ordinarily have a constitutional right to have issues of fact decided by the finder of fact, the party moving for summary judgment is held to a strict standard. [H]e must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact.” (Internal quotation marks omitted.) [*9]  Barasso v. Rear Still Hill Road, LLC, 81 Conn.App. 798, 802-03, 842 A.2d 1134 (2004). Consequently, on a motion by defendant for summary judgment the burden is on the defendant to negate each claim as framed by the complaint. Squeo v. Norwalk Hospital Ass’n, 316 Conn. 558, 594, 113 A.3d 932 (2015). “It necessarily follows that it is only [o]nce [the] defendant’s burden in establishing his entitlement to summary judgment is met [that] the burden shifts to [the] plaintiff to show that a genuine issue of fact exists justifying a trial.” (Internal quotation marks omitted.) Rockwell v. Quintner, 96 Conn.App. 221, 229, 899 A.2d 738, cert. denied, 280 Conn. 917, 908 A.2d 538 (2006).

“A material fact is a fact that will make a difference in the result of the case . . . The facts at issue are those alleged in the pleadings.” (Internal quotation marks omitted.) Morrissey-Manter v. Saint Francis Hospital & Medical Center, 166 Conn.App. 510, 517, 142 A.3d 363, cert. denied, 323 Conn. 924, 149 A.3d 982 (2016). Moreover, “[a] genuine issue has been variously described as a triable, substantial or real issue of fact . . . and has been defined as one which can be maintained by substantial evidence . . . Hence, the genuine issue aspect of summary judgment procedure requires the parties to bring forward before trial evidentiary facts, or substantial evidence outside the pleadings, from which the material facts alleged in the pleadings can warrantably be inferred.” (Internal quotation marks omitted.) Rickel v. Komaromi, 144 Conn.App. 775, 790-91, 73 A.3d 851 (2013). “Because litigants ordinarily have a constitutional right to have issues [*10]  of fact decided by the finder of fact, the party moving for summary judgment is held to a strict standard. [H]e must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact.” (Internal quotation marks omitted.) Barasso v. Rear Still Hill Road, LLC, 81 Conn.App. 798, 802-03, 842 A.2d 1134 (2004).

II

Additional Discovery Argument

In their objection to summary judgment, the RCF defendants argue several times that summary judgment would be inappropriate because discovery is not complete. The court has before it the scheduling orders submitted by the parties, as signed by legal counsel for the RCF parties and the plaintiff. These scheduling orders filed on February 22, 2019,were approved by the court (Kamp, J.) on March 7, 2019.6 The approved scheduling order listed September 30, 2019, as the date by which all discovery was to be completed. There have been no requests to modify the scheduling order or to extend the dates for the completion of discovery.7 The court has before it the “Rock Climb Fairfield Release of Liability and Assumption of Risk” document and further additional information submitted by the parties to allow the court to move forward, including the transcript of the deposition [*11]  testimony of Nora Maklad and employee of RCF. There is no indication that the defendants have sought more information through the discovery process or that Licata has objected to, obstructed or delayed the discovery process. The court has a one hundred and twenty-day time limitation to issue its decision and the court will do so within that time limit with the information that is available, as a trial date assignment is pending.

III

Contractual Indemnification

Count One of the Rock Climb defendants’ third-party complaint against Licata alleges contractual indemnification. “Indemnity involves a claim for reimbursement in full from one who is claimed to be primarily liable.” Atkinson v. Berloni, 23 Conn.App. 325, 326, 580 A.2d 84 (1990). “A party may bring an indemnification claim based on the terms of an indemnity agreement . . . [A]llegations of contractual indemnification must be supported by the terms of the contract or the contract itself . . . Under Connecticut law, to state a contract-based indemnification claim, the claimant must allege either an express or implied contractual right to indemnification . . . There is no requirement that a party seeking indemnification must assert allegations of exclusive control (or any of the other elements [*12]  of a claim for indemnification based on active-passive negligence) in order to state a legally sufficient claim for contractual indemnification.” (Citations omitted; internal quotation marks omitted.) Kinney v. Gilbane Building Co., Superior Court, judicial district of New Haven at Meriden, Docket No. CV 01 0276049 (September 21, 2004, Wiese, J.).

“As a general rule, contractual indemnification claims that are based on written agreements are construed in accordance with the principles of contract law.”
Lawrence v. Sodexho, Inc., Superior Court, judicial district of Fairfield, Docket No. CV 06 5001264 (January 25, 2007, Owens, J.T.R.); 42 Conn. L. Rptr. 843, 2007 Conn. Super. LEXIS 245; see also PSE Consulting, Inc. v. Frank Mercede & Sons, Inc., 267 Conn. 279, 290, 838 A.2d 135 (2004). “The essential elements for a cause of action based on breach of contract are (1) the formation of an agreement, (2) performance by one party, (3) breach of the agreement by the opposing party, and (4) damages . . . [and] causation.” Greco Properties, LLC v. Popp, Superior Court, judicial district of Hartford, Docket No. CVH 7628, 2008 Conn. Super. LEXIS 414 (February 15, 2008, Bentivegna, J.), citing McCann Real Equities Series XXII, LLC v. David McDermott Chevrolet, Inc., 93 Conn.App. 486, 503-04, 890 A.2d 140, cert. denied, 277 Conn. 928, 895 A.2d 798 (2006).

“[I]n order to form a contract, generally there must be a bargain in which there is a manifestation of mutual assent to the exchange between two or more parties . . . and the identities of [*13]  the contracting parties must be reasonably certain.” (Citations omitted.) Ubysz v. DiPietro, 185 Conn. 47, 51, 440 A.2d 830 (1981); BRJM, LLC v. Output Systems, Inc., 100 Conn.App. 143, 152, 917 A.2d 605, cert. denied, 282 Conn. 917, 925 A.2d 1099 (2007). “[A] party is entitled to indemnification, in the absence of a contract to indemnify, only upon proving that the party against whom indemnification is sought either dishonored a contractual provision or engaged in some tortious conduct.” Burkert v. Petrol Plus of Naugatuck, Inc., 216 Conn. 65, 74, 579 A.2d 26 (1990). “[Allegations of contractual indemnification must be supported by the terms of the contract or the contract itself . . . Under Connecticut law, to state a contract-based indemnification claim, the claimant must allege either an express or implied contractual right to indemnification . . .”(Citation omitted; internal quotation marks omitted.) Fisher v. Countrywide Home Loans, Inc., Superior Court, judicial district of Litchfield, Docket No. CV-09-4008690-S, 2011 Conn. Super. LEXIS 32 (January 7, 2011, Roche, J.).

As noted, herein, the contract relied upon by the Rock Climb defendants is the “Rock Climb Fairfield Release of Liability and Assumption of Risk” document that has been submitted for the court’s review. It was admittedly signed by Kate Licata on October 3, 2016, the date of the alleged incident, wherein the minor child was injured. The document bears the name of the minor child [*14]  and her date of birth. It lists the e-mail address of Licata and Licata’s electronic signature.

Paragraph 1 of the document titled “activities and risks” lists indoor wall climbing and bouldering as activities. Risks include, among other things: falling from climbing surfaces; persons climbing out of control or beyond personal limits; over-exertion; inadequate physical conditioning; and the negligence of other persons, including other visitors. The document states that the risks described in the document “are inherent in RCF activities . . . and cannot be eliminated without jeopardizing the essential qualities of the activity.”

Paragraph 2, titled “Assumption of Risks” states:

I accept and assume all the risks of a visit to RCF activity sites, inherent or not and whether or not described above, If the visitor is a minor of whom I am parent or legal guardian, I have explained the risks to the minor visitor, who understands them and wishes to visit and participate in RCF activities in spite of the risks.

Paragraph 3 is titled “Release and Indemnity. That paragraph notes that the signor of the agreement is an adult visitor or parent of a minor visitor and that the signor releases and discharges [*15]  and agrees to indemnify the RCF defendants from all claims, suits, demands or causes of action, which are connected to the minor’s visit to and participation in, RCF activities. The agreement is intended to include claims arising out of losses suffered by the child and losses caused by the signor or the child. By signing the agreement, the signor agrees to indemnify and release claims of negligence of the RCF defendants.

Lastly, paragraph 5 of the Release notes that the signor acknowledges that if the minor visitor for whom the signor has signed their signature, is hurt and files a lawsuit, the signor will protect the released and indemnified RCF defendants from any claims of the minor visitor.

The Release bears a signature line and date line for the “parent or legal court appointed guardian. As stated, it is signed by Kate Licata and dated October 3, 2016. The document is not signed by the RCF defendants or any agent, servant or employee of the RCF defendants.

Licata, in moving for summary judgment, argues the “Release of Liability and Assumption of Risk” document is void as against public policy and unenforceable against her. Her argument relies upon the decisions in Hanks v. Powder Ridge Restaurant Corporation, 276 Conn. 314, 885 A.2d 734 (2005) and Reardon v. Windswept Farm, LLC, 280 Conn. 153, 905 A.2d 1156 (2006).

In Hanks [*16] , the plaintiff, a patron, brought his three children and another child to Powder Ridge to snow-tube. Neither the plaintiff or the children had ever snow-tubed at Powder Ridge, but the snow-tubing run was open to the public generally, regardless of prior snow-tubing experience, with the restriction that only persons at least six years old or forty-four inches tall were eligible to participate. In order to snow-tube at Powder Ridge, patrons were required to sign a “Waiver, Defense, Indemnity and Hold Harmless Agreement, and Release of Liability.” The plaintiff read and signed the agreement on behalf of himself and the four children. While snow-tubing, the plaintiff’s right foot became caught between his snow-tube and the man-made bank of the snow-tubing run, resulting in serious injuries that required multiple surgeries to repair. Id., 316-17. The plaintiff alleged that the defendants negligently caused his injuries in several ways. Id. The defendants denied the plaintiff’s allegations of negligence and asserted two special defenses. “Specifically, the defendants alleged that the plaintiff’s injuries were caused by his own negligence and that the agreement relieved the defendants of liability, “even if the accident was due to the negligence of the defendants.” Id., 318-19.

In Hanks, our Supreme Court determined that even though the exculpatory agreement purporting to release the defendants from prospective liability for personal injuries sustained as a result of the operator’s negligent conduct was well drafted, it nonetheless violated public policy. In finding the agreement violated public policy, the Supreme Court reversed [*17]  the trial court’s granting of summary judgment for the defendants. Id., 321-26.

In Hanks, snowtubing was the recreational activity at issue. Our Supreme Court placed particular emphasis on: (1) the societal expectation that family oriented activities will be reasonably safe; (2) the illogic of relieving the party with greater expertise and information concerning the dangers associated with the activity from the burden of proper maintenance of the snowtubing run; and (3) the fact that the release at issue was a standardized adhesion contract, lacking equal bargaining power between the parties, and offered to the plaintiff on a “take it or leave it” basis. Hanks v. Powder Ridge Restaurant Corp., supra, 276 Conn. at 331-34. The court recognized the clear public policy in favor of participation in athletics and recreational activities. Id., at 335.

In Reardon v. Windswept Farm, LLC, supra, 280 Conn. 153, the plaintiff was an experienced horseback rider, who was injured while riding one of the defendant’s horses. The plaintiff subsequently challenged the validity of a release document similar to the one in Hanks, and in this case, wherein the defendant sought to insulate itself from liability. Reardon found that the decision in Hanks was controlling in determining the validity of the release and indemnity agreement.

We conclude [*18]  that, based on our decision in Hanks, the totality of the circumstances surrounding the recreational activity of horseback riding and instruction that was offered by the defendants demonstrates that the enforcement of an exculpatory agreement in their favor from liability for ordinary negligence violates public policy and is not in the public interest. First, similar to the situation at issue in Hanks, the defendants in the present case provided the facilities, the instructors, and the equipment for their patrons to engage in a popular recreational activity, and the recreational facilities were open to the general public regardless of an individual’s ability level. Indeed, the defendants acknowledged that, although the release required riders to indicate their experience level, it also anticipated a range in skills from between “[n]ever ridden” to “[e]xperienced [r]ider,” and that the facility routinely had patrons of varying ability levels. Accordingly, there is a reasonable societal expectation that a recreational activity that is under the control of the provider and is open to all individuals, regardless of experience or ability level, will be reasonably safe.

Id., 161.

Additionally, in [*19]  the present case, as in Hanks, the plaintiff “lacked the knowledge, experience and authority to discern whether, much less ensure that, the defendants’ [facilities or equipment] were maintained in a reasonably safe condition. Specifically, although the plaintiff characterized herself as an experienced rider, she was in no greater position then the average rider to assess all the safety issues connected with the defendants’ enterprise. To the contrary, it was the defendants, not the plaintiff or the other customers, who had the “expertise and opportunity to foresee and control hazards, and to guard against the negligence of their agents and employees. They alone [could] properly maintain and inspect their premises, and train their employees in risk management.” In particular, the defendants acknowledged that they were responsible for providing their patrons with safe horses, qualified instructors, as well as properly maintained working equipment and riding surfaces. In the context of carrying out these duties, the defendants were aware, and were in a position continually to gather more information, regarding any hidden dangers associated with the recreational activity including the [*20]  temperaments of the individual horses, the strengths of the various riding instructors, and the condition of the facility’s equipment and grounds. As we concluded in Hanks, it is illogical to relieve the defendants, as the party with greater expertise and information concerning the dangers associated with engaging in horseback riding at their facility, from potential claims of negligence surrounding an alleged failure to administer properly the activity.

(Internal citations and quotation marks omitted.) Id., 161-62.

Lastly, the Reardon court noted that the release that the plaintiff signed broadly indemnifying the defendants from liability for damages resulting from the defendants’ own negligence was a classic contract of adhesion of the type that this court found to be in violation of public policy in Hanks.

Specifically, we have noted that the most salient feature of adhesion contracts is that they are not subject to the normal bargaining processes of ordinary contracts, and that they tend to involve a standard form contract prepared by one party, to be signed by the party in a weaker position, usually a consumer, who has little choice about the terms. In the present case, signing the release [*21]  provided by the defendants was required as a condition of the plaintiff’s participation in the horseback riding lesson, there was no opportunity for negotiation by the plaintiff, and if she was unsatisfied with the terms of the release, her only option was to not participate in the activity. As in Hanks, therefore, the plaintiff had nearly zero bargaining power with respect to the negotiation of the release and in order to participate in the activity, she was required to assume the risk of the defendants’ negligence. This condition of participation violates the stated public policy of our tort system because the plaintiff was required to bear an additional risk despite her status as a patron who was not in a position to foresee or control the alleged negligent conduct that she was confronted with, or manage and spread the risk more effectively then the defendants.

(Internal citations and quotation marks omitted.) Id., 162-63.

It is also noted that the court in Reardon did not limit its decision to the sport of horseback riding or the activity of snowtubing which was the activity in Hanks. “The list of recreational activities that we identified in Hanks was meant to be illustrative, not exhaustive. [*22]  Indeed, it would be impossible for us to identify all of the recreational activities controlled by the Hanks decision.” Id., 165-66. The court finds that the factors considered in Hanks v. Powder Ridge Restaurant Corporation, supra, 276 Conn. 314 and Reardon v. Windswept Farm, LLC, supra, 280 Conn. 153 apply to the activities of bouldering and rock climbing which are present in the case before this court.8

In the present case, the defendant’s facility was open to the general public regardless of a patron’s experience level. The minor plaintiff was a ten-year-old female. The defendants have admitted that they provided instruction to the group of minors attending the birthday celebration at the defendants’ facility. Neither the minor plaintiff or Licata provided any of the equipment to be used. Licata, herself, did not provide training, guidance or supervision to the minors, including the minor plaintiff. Licata possessed no special knowledge regarding rock climbing or bouldering activities including training and safety procedures other than an initial orientation by RCF employees.9 Maklad testified at her deposition that the orientation lasted only five to ten minutes. The RCF defendants/third-party plaintiffs admit that there was zero expectation that Licata would “train and guide climbers” [*23]  or to inspect various facility equipment. RCF argues that they did expect that parents and guardians would supervise children. Thus, there is a question of fact as to whether or not Licata was adequately supervising the minor plaintiff Cannon when she fell. The court disagrees.

In this case, signing the release provided by RCF was required as a condition of the plaintiff’s participation in the bouldering and rock climbing activities at the RCF facility. There was no opportunity for negotiation by the plaintiff, and if she was unsatisfied with the terms of the release, her only option was to not to allow the minor guests who accompanied her to the birthday party to participate. Licata had no bargaining power with respect to the negotiation of the release and in order to participate in the activity, she was required to assume the risk of the defendants’ negligence. “This condition of participation violates the stated public policy of our tort system because the plaintiff was required to bear an additional risk despite her status as a patron who was not in a position to foresee or control the alleged negligent conduct that she was confronted with, or manage and spread the [*24]  risk more effectively then the defendants.” Reardon v. Windswept Farm, LLC, supra, 280 Conn. 162-63. The RCF release at issue was a standardized adhesion contract, lacking equal bargaining power between the parties, and offered to the plaintiff on a “take it or leave it” basis. Hanks v. Powder Ridge Restaurant Corp., supra, 276 Conn. at 331-34.10

The RCF parties additionally argue that it is improper to allow Licata to avail herself of arguments based on public policy when she in turn violated public policy by signing the Release and Indemnification Agreement when she was not the parent or legal guardian of the minor plaintiff, Cannon. They argue Licata violated societal expectations and norms in signing the document and now disclaiming responsibility. They declare that Licata is the wrongdoer and should not be allowed to walk away from this issue.

Licata in her reply to the RCF objection to summary judgment argues that the RCF defendants have cited no authority for their position that Licata’s signing of the release document on behalf of the minor, Emma Cannon constituted a violation of public policy; nor have they explained why such a violation would restrict Licata from challenging the validity of the waiver. Licata also questions why the RCF defendants would make this argument, given that the sole basis [*25]  for the contractual indemnification claim against Licata is her signing of the release document is which they now assert violated public policy. The court agrees. If the signing of the release was invalid, then it would stand to reason that the release itself is invalid. The RCF defendants, by their own reasoning would be attempting to enforce an agreement, which they themselves claim is invalid.

For the reasons set forth herein, the court grants Licata’s motion for summary judgment on Count One of the Rock Climb defendants’ third-party complaint against Licata alleging contractual indemnification.

IV Common-Law Indemnification

In Count Two of the cross claim, the RCF defendants allege common-law indemnification. Therefore, the court reviews our law concerning common-law indemnification, as set forth in Valente v. Securitas Sec. Services, USA, Inc., 152 Conn.App. 196, 203-04, 96 A.3d 1275 (2014). Citing, Kaplan v. Merberg Wrecking Corp., 152 Conn. 405, 412, 207 A.2d 732 (1965), the Appellate Court in Valente, supra, noted that “[g]enerally, there is no right to indemnification between joint tortfeasors.” Kaplan v. Merberg Wrecking Corp., supra, recognized an exception to this general rule. “Kaplan teaches that indemnification is available from a third party on whom a primary exposure of liability is claimed to rest. To hold a third party liable to indemnify one tortfeasor for damages awarded against [*26]  it to the plaintiff for negligently causing harm to the plaintiff, a defendant seeking indemnification must establish that: (1) the third party against whom indemnification is sought was negligent; (2) the third party’s active negligence, rather than the defendant’s own passive negligence, was the direct, immediate cause of the accident and the resulting harm; (3) the third party was in control of the situation to the exclusion of the defendant seeking reimbursement; and (4) the defendant did not know of the third party’s negligence, had no reason to anticipate it, and reasonably could rely on the third party not to be negligent.” (Citation omitted.) Valente v. Securitas Sec. Services, USA, Inc., supra, 152 Conn.App. 203-04. “Our Supreme Court has defined exclusive control of the situation, for the purpose of a common-law indemnification claim, as exclusive control over the dangerous condition that gives rise to the accident.” (Internal quotation marks omitted.) Id., citing, Pellecchia v. Connecticut Light & Power Co., 139 Conn.App. 767, 775, 57 A.3d 803 (2012) (dangerous condition held to be electric power line which electrocuted plaintiff), cert. denied, 308 Conn. 911, 61 A.3d 532 (2013).

The court has reviewed the objection to the motion for summary judgment filed by the RCF defendants and notes, as pointed out by Licata in her reply brief, that the RCF defendants have [*27]  not addressed Licata’s claim in her motion for summary judgment that she did not control the situation that prevailed at the RCF’s facility on the date of the minor’s injury; nor is it alleged in the cross claim that Licata controlled the situation. An essential element of common-law indemnification is that the third party, Licata, was in control of the situation to the exclusion of the third-party plaintiffs. Valente v. Securitas Sec. Services, USA, Inc., supra, 152 Conn.App. 203-04; Pellecchia v. Connecticut Light & Power Co., supra, 139 Conn.App. 775. The third-party plaintiffs, the RCF defendants, have produced little to no credible evidence; nor have they alleged or argued that Licata was in control of the situation to the exclusion. “Where a claim is asserted in the statement of issues but thereafter receives only cursory attention in the brief without substantive discussion or citation of authorities, it is deemed to be abandoned.” (Citations omitted; internal quotation marks omitted.) Merchant v. State Ethics Commission, 53 Conn.App. 808, 818, 733 A.2d 287 (1999). These same principles apply to claims raised in the trial court. Connecticut Light and Power Co. v. Department of Public Utility Control, 266 Conn. 108, 120, 830 A.2d 1121 (2003).

For the foregoing reasons discussed, herein, Licata’s motion for summary judgment is granted as to Count Two alleging common-law indemnification.

ORDERS

Licata’s Motion for Summary Judgment is granted as to Count One, which alleges contractual indemnification and Count [*28]  Two, which alleges common-law indemnification.

THE COURT

Judge Richard E. Arnold,

Judge Trial Referee


Haines v. Get Air Tucson Incorporated, et al., 2018 U.S. Dist. LEXIS 180500, 2018 WL 5118640

Haines v. Get Air Tucson Incorporated, et al., 2018 U.S. Dist. LEXIS 180500, 2018 WL 5118640

Blake Haines, Plaintiff,

v.

Get Air Tucson Incorporated, et al., Defendants.

No. CV-15-00002-TUC-RM (EJM)

United States District Court, D. Arizona

October 19, 2018

ORDER

Honorable Rosemary Marquez United States District Judge.

Pending before the Court is Defendant Get Air, LLC’s (“Defendant” or “GALLC”) Motion for Summary Judgment. (Doc. 238.) On August 2, 2018, Magistrate Judge Eric J. Markovich issued a Report and Recommendation (Doc. 266), recommending that the Motion for Summary Judgment be granted as to Plaintiff’s punitive damages claim but otherwise denied. Defendant filed an Objection (Doc. 269), to which Plaintiff responded (Doc. 273).

I. Standard of Review

A district judge “may accept, reject, or modify, in whole or in part, the findings or recommendations” made by a magistrate judge. 28 U.S.C. § 636(b)(1). The district judge must “make a de novo determination of those portions” of the magistrate judge’s “report or specified proposed findings or recommendations to which objection is made.” Id. The advisory committee’s notes to Rule 72(b) of the Federal Rules of Civil Procedure state that, “[w]hen no timely objection is filed, the court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation” of a magistrate judge. Fed.R.Civ.P. 72(b) advisory committee’s note to 1983 addition. See also Johnson v. Zema Sys. Corp., 170 F.3d 734, 739 (7th Cir. 1999) (“If no objection or only partial objection is made, the district court judge reviews those unobjected portions for clear error.”); Prior v. Ryan, CV 10-225-TUC-RCC, 2012 WL 1344286, at *1 (D. Ariz. Apr. 18, 2012) (reviewing for clear error unobjected-to portions of Report and Recommendation).

II. GALLC’s Objection to Judge Markovich’s Report and Recommendation

As previously found by this Court, Plaintiff has presented evidence that GALLC developed a generic employee handbook (“EH”) for use in other Get Air trampoline parks as part of its support for the expansion of the Get Air business enterprise, and that the EH was used by Get Air Tucson. (See Doc. 158 at 12-14; Doc. 172 at 5.)[1] Plaintiff claims that his injuries were caused by allegedly deficient safety rules contained in the EH. (See Doc. 84 at 6, 10, 12-13.) In its Motion for Summary Judgment, Defendant argues (1) it owed no duty to Plaintiff, (2) even if it owed a duty, it was not negligent because the EH prohibited the maneuver that led to Plaintiff’s injuries, (3) it no longer has any potential legal liability because the employee involved in the creation of the EH was dismissed with prejudice; (4) Plaintiff cannot prove causation, and (5) Plaintiff’s claim for punitive damages is factually unsupported. (Doc. 238 at 1-2.)

Judge Markovich recommended that Defendant’s Motion for Summary Judgment be granted with respect to Plaintiff’s punitive-damages claim. (Doc. 266 at 17.) Judge Markovich rejected Defendant’s other arguments. He found that, as a result of “the special business-customer relationship that was created when GALLC performed an undertaking to develop the EH as part of its support work for the Get Air entities, ” GALLC owed Plaintiff a duty to exercise reasonable care in developing the safety rules in the EH. (Id. at 10.) Judge Markovich found that summary judgment on the issue of breach of the standard of care is precluded because there is a material factual dispute concerning whether the rule prohibiting somersaults in the EH was sufficient to prohibit the flip maneuver attempted by Plaintiff. (Id. at 7-8.) Judge Markovich also found that the dismissal of Val Iverson does not preclude Plaintiff from pursuing this action against GALLC, because a stipulated dismissal with prejudice no longer operates as an adjudication on the merits under Arizona law, and because Plaintiff’s claims are based on GALLC’s own negligence and piercing the corporate veil rather than on vicarious liability. (Id. at 16.) Finally, Judge Markovich found that Defendant’s causal-connection argument is “belied by other evidence previously considered by the Court.” (Id. at 16-17.)

Defendant argues that Judge Markovich erred in finding that GALLC owed Plaintiff a duty, in finding a material factual dispute with respect to the issue of breach of the standard of care, and in finding that GALLC can be held liable despite the dismissal of Val Iverson. (Doc. 269 at 1-10.) GALLC’s Objection to the Report and Recommendation does not address Judge Markovich’s finding on causation. The parties do not object to Judge Markovich’s finding that Plaintiff’s punitive-damages claim is factually unsupported.

III. Discussion

As no specific objections have been made to Judge Markovich’s recommendations regarding Plaintiff’s punitive-damages claim and Defendant’s causation argument, the Court has reviewed those portions of the Report and Recommendation for clear error, and has found none. Accordingly, the Court will accept and adopt Judge Markovich’s recommendation to grant Defendant’s Motion for Summary Judgment with respect to Plaintiff’s punitive damages claim and to deny the Motion for Summary Judgment to the extent it argues a lack of evidence of causation.

A. Existence of Duty

“To establish a defendant’s liability for a negligence claim, a plaintiff must prove: (1) a duty requiring the defendant to conform to a certain standard of care; (2) breach of that standard; (3) a causal connection between the breach and the resulting injury; and (4) actual damages.” Quiroz v. Alcoa Inc., 416 P.3d 824, 827-28 (Ariz. 2018). The existence of a duty is determined by the Court as a matter of law. See Id. at 828. A duty may “arise from a special relationship between the parties, ” including a special relationship finding its basis in “undertakings.” Stanley v. McCarver, 92 P.3d 849, 851 (Ariz. 2004); see also Quiroz, 416 P.3d at 829.

Although there is evidence that the various Get Air enterprises were operated as a closely linked network, the Court does not find that Plaintiff and GALLC had a traditional business-customer relationship. However, even though there was no direct business-customer relationship, Plaintiff and GALLC nevertheless had a special relationship based on GALLC undertaking to create safety rules for other Get Air trampoline parks, which GALLC included in a generic EH developed as part of its support work for the Get Air entities. Imposition of a duty based on this special relationship is supported by Arizona case law as well as sections 323 and 324A of the Restatement (Second) of Torts.

In McCarver, the Arizona Supreme Court imposed a duty of reasonable care on a radiologist contracted by the plaintiff’s employer to interpret an x-ray of the plaintiff’s chest, despite the lack of a traditional doctor-patient relationship. 92 P.3d at 853. In imposing a duty, the Court analyzed “whether the doctor was in a unique position to prevent harm, the burden of preventing harm, whether the plaintiff relied upon the doctor’s diagnosis or interpretation, the closeness of the connection between the defendant’s conduct and the injury suffered, the degree of certainty that the plaintiff has suffered or will suffer harm, the skill or special reputation of the actors, and public policy.” Id. Though the facts at issue in McCarver differ from those at issue in the present case, the factors supporting imposition of a duty in McCarver also support imposition of a duty here. By including safety rules in a generic EH developed for use in other Get Air parks, GALLC placed itself in a unique position to prevent harm to customers of those other Get Air parks. Get Air Tucson customers such as Plaintiff relied upon the safety rules developed by GALLC and enforced by Get Air Tucson. Plaintiff alleges that his injuries were caused by deficiencies in those safety rules. GALLC’s experience in the field of trampoline-park operations gave it special skill and a special reputation with respect to the creation of safety rules for other Get Air parks. Deficient safety rules increase the risk of harm to trampoline park customers, and the burden of developing sufficient safety rules is minimal.

The Court in McCarver also found that imposition of a duty in that case comported with Restatement (Second) of Torts § 324A. See McCarver, 92 P.3d at 853-54. Defendant argues in its Objection that Restatement (Second) of Torts § 324A “can appear to be the basis of the holding” in McCarver “but it is not.” (Doc. 269 at 3.) The import of Defendant’s argument is unclear. Whether it forms the basis of the holding in McCarver or not, Restatement (Second) of Torts § 324A has been adopted by Arizona courts. See Tollenaar v. Chino Valley Sch. Dist., 945 P.2d 1310, 1312 (Ariz. App. 1997). Section 324A provides:

One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if

(a) his failure to exercise reasonable care increases the risk of such harm, or

(b) he has undertaken to perform a duty owed by the other to the third person, or

(c) the harm is suffered because of reliance of the other or the third person upon the undertaking.

Restatement (Second) of Torts § 324A (1965).

Restatement (Second) of Torts § 324A supports the existence of a duty in this case.[2] GALLC undertook to render services to Get Air Tucson (e.g., development of an EH containing safety rules) which were necessary for the protection of Get Air Tucson’s customers. Plaintiff alleges that GALLC failed to exercise reasonable care in the development of the EH’s safety rules; if so, the failure increased the risk of harm to Get Air Tucson’s customers. See Restatement (2d) of Torts § 324A(a) (1965). Furthermore, GALLC undertook to perform a duty-development of reasonable safety rules-which Get Air Tucson owed to its customers. See Id. at § 324A(b). Plaintiff alleges he was injured as a result of his reliance upon the safety rules developed by GALLC and enforced by Get Air Tucson. See Id. at § 324A(c).

Restatement (Second) of Torts § 323 has also been adopted by Arizona courts, see Tollenaar, 945 P.2d at 1312, and it also supports the existence of a duty here. Section 323 provides:

One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other’s person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if

(a) his failure to exercise such care, increases the risk of such harm, or

(b) the harm is suffered because of the other’s reliance upon the undertaking.

Restatement (2d) of Torts § 323 (1965). GALLC’s creation of safety rules was a service rendered not only to Get Air parks but to the customers of those parks, including Get Air Tucson customers.

The Court agrees with Judge Markovich that GALLC owed Plaintiff a duty to exercise reasonable care in the development of the safety rules contained in the generic EH supplied to Get Air Tucson.

B. Breach

The Court also agrees with Judge Markovich that there is a genuine issue of material fact precluding summary judgment on the issue of whether GALLC breached its duty to exercise reasonable care in the creation of the EH’s safety rules. Specifically, there is a factual dispute regarding the definition of “somersault, ” as used in the EH’s safety rules and, therefore, a dispute regarding whether the flip maneuver attempted by Plaintiff was prohibited by the safety rules. The evidence identified by Plaintiff and Defendant indicates that there may be differing technical and layperson definitions of the term “somersault.” Even if the maneuver attempted by Plaintiff falls within a technical definition of the term “somersault, ” as Defendant argues, Plaintiff has identified evidence showing that Get Air employees did not consider flips to be encompassed by the EH’s safety rule prohibiting somersaults. (See Doc. 246 at 4-5; Doc. 246-1.) Accordingly, there is evidence from which a reasonable jury could find that the EH’s safety rules were defective for not clearly prohibiting the flip maneuver that led to Plaintiff’s injuries.

C. Liability of GALLC

Defendant argues that the only act of negligence alleged by Plaintiff is GALLC’s creation of allegedly defective safety rules, that Val Iverson was solely responsible for the creation of those safety rules, and that GALLC cannot be held vicariously liable for the conduct of Val Iverson because he has been dismissed with prejudice. However, as Judge Markovich found, Plaintiff is not asserting vicarious liability; rather, Plaintiff alleges that GALLC is independently negligent for undertaking to create a generic EH for use in other Get Air parks, including Get Air Tucson, and including allegedly deficient safety rules in that EH. The dismissal with prejudice of Val Iverson does not preclude Plaintiff from asserting a claim against GALLC for its own independent negligence, even if establishing the independent negligence of GALLC may require proof of Val Iverson’s negligence. See Kopp v. Physician Grp. of Ariz., Inc., 421 P.3d 149, 150 (Ariz. 2018).

IT IS ORDERED that Defendant’s Objection (Doc. 269) is overruled, and Judge Markovich’s Report and Recommendation (Doc. 266) is accepted and adopted as set forth above.

IT IS FURTHER ORDERED that Defendant’s Motion for Summary Judgment (Doc. 238) is granted as to Plaintiffs punitive damages claim only and is otherwise denied.

—–

Notes:

[1] Record citations refer to the page numbers generated by the Court’s electronic filing system.

[2] Defendant argues that § 324A is no longer a permissible basis of duty in Arizona because it is based on foreseeability. (Doc. 269 at 8.) Defendant cites no authority in support of the proposition that Arizona courts no longer follow § 324A. (See Doc. 247 at 1-4; Doc. 269 at 8.) Arizona courts have rejected the concept of duty based on the creation of an unreasonable risk of harm to “a foreseeable plaintiff, ” meaning a plaintiff “who is within the orbit or zone of danger created by a defendant’s conduct.” Quiroz, 416 P.3d at 828 (internal quotation marks omitted). Here, however, GALLC owed a duty to Get Air customers based on the special relationship created as a result of GALLC undertaking to develop safety rules for the protection of those customers. The duty arises from the special relationship rather than “zone of danger” foreseeability. See Id. at 829 (given the elimination of foreseeability from the duty framework, “the duty analysis” under Arizona law is limited to “common law special relationships or relationships created by public policy”).

—–


Langlois v. Nova River Runners, Inc., 2018 Alas. LEXIS 31

Langlois v. Nova River Runners, Inc., 2018 Alas. LEXIS 31

Vanessa L. Langlois, Personal Representative of the Estate of Stephen J. Morton, Appellant, v. Nova River Runners, Inc., Appellee.

Supreme Court No. S-16422, No. 1669

Supreme Court of Alaska

2018 Alas. LEXIS 31

March 21, 2018, Decided

NOTICE: MEMORANDUM DECISIONS OF THIS COURT DO NOT CREATE LEGAL PRECEDENT. SEE ALASKA APPELLATE GUIDELINES FOR PUBLICATION OF SUPREME COURT DECISIONS. ACCORDINGLY, THIS MEMORANDUM DECISION MAY NOT BE CITED FOR ANY PROPOSITION OF LAW, NOR AS AN EXAMPLE OF THE PROPER RESOLUTION OF ANY ISSUE.

PRIOR HISTORY: [*1] Appeal from the Superior Court of the State of Alaska, Third Judicial District, Anchorage, Pamela Scott Washington, Judge pro tem. Superior Court No. 3AN-15-06866 CI.

CASE SUMMARY

OVERVIEW: HOLDINGS: [1]-A release entitled defendant rafting company to wrongful

COUNSEL: Mara E. Michaletz and David K. Gross, Birch Horton Bittner & Cherot, Anchorage, for Appellant.

Howard A. Lazar, Scott J. Gerlach, and Luba K. Bartnitskaia, Delaney Wiles, Inc., Anchorage, for Appellee.

JUDGES: Before: Stowers, Chief Justice, Winfree, Maassen, Bolger, and Carney, Justices. Winfree, Justice, with whom Carney, Justice, joins, dissenting.

OPINION

MEMORANDUM OPINION AND JUDGMENT*

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

* Entered under Alaska Appellate Rule 214.

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

I. INTRODUCTION

The estate of a man who drowned on a rafting trip challenged the validity of the pre-trip liability release. The superior court granted summary judgment in favor of the rafting company. Because there were no genuine issues of material fact and the release was effective under our precedent, we affirm.

II. FACTS AND PROCEEDINGS

In May 2013 Stephen Morton took part in a whitewater rafting trip on Six Mile Creek near Hope. The trip was conducted by NOVA River Runners (NOVA). This case arises out of Morton’s tragic death by drowning after his raft capsized.

A. The Release

Before embarking on a rafting trip, participants typically receive and sign [*2] NOVA’s liability release (the Release). The Release is provided as a single two-sided document. One side is entitled “Participant’s Acknowledgment of Risks” and begins with a definition of activities: “any adventure, sport or activity associated with the outdoors and/or wilderness and the use or presence of watercraft, including but not limited to kayaks, rafts, oar boats and glacier hiking and ice climbing equipment, including crampons, ski poles, climbing harnesses and associated ice climbing hardware.” The Release then states:

Although the concessionaire has taken reasonable steps to provide you with appropriate equipment and/or skilled guides so you can enjoy an activity for which you may not be skilled, we wish to remind you this activity is not without risk. Certain risks cannot be eliminated without destroying the unique character of the activity.

The Release then provides a list of “some, but not all” of the “inherent risks,” including “[m]y . . . ability to swim . . . and/or follow instructions” and “[l]oss of control of the craft, collision, capsizing, and sinking of the craft, which can result in wetness, injury, . . . and/or drowning.” The Release next asks participants to [*3] affirm that they possess certain qualifications, including physical capability and safety awareness. The last section of the first side purports to waive liability for the negligent acts of NOVA and its employees. There is no designated space for signatures or initials on this side.

At the top of the other side, participants are asked to acknowledge that “[They] have read, understood, and accepted the terms and conditions stated herein” and that the agreement “shall be binding upon [the participant] . . . and [their] estate.” No terms or conditions appear on this side. There are then three signature blocks where up to three participants can sign, with space to include an emergency contact, allergies, and medications.

Brad Cosgrove, NOVA’s “river manager” for this trip, did not recall whether Morton read the Release before signing it, but stated that “[n]obody was rushed into signing” and that he “physically showed each participant” both sides of the Release. Bernd Horsman, who rafted with Morton that day, stated that he recalled “sign[ing] a document that briefly stated that you waive any liability in case something happens” but thought the document only had one side. He did not recall [*4] “someone physically show[ing]” the Release to him, but he wasn’t rushed into signing it. Both Horsman’s and Morton’s signatures appear on the Release.

B. The Rafting Trip

The rafting trip consisted of three canyons. NOVA would routinely give participants the opportunity to disembark after the second canyon, because the third canyon is the most difficult. Morton did not choose to disembark after the second canyon, and his raft capsized in the third canyon. Cosgrove was able to pull him from the river and attempted to resuscitate him. NOVA contacted emergency services and delivered Morton for further care, but he died shortly thereafter.

C. Legal Proceedings

Morton’s widow, Vanessa Langlois, brought suit as the personal representative of Morton’s estate (the Estate) in May 2015 under AS 09.55.580 (wrongful death) and AS 09.55.570 (survival), requesting compensatory damages, plus costs, fees, and interest. The Estate alleged that NOVA was negligent and listed multiple theories primarily based on the employees’ actions or omissions.

NOVA moved for summary judgment in November 2015, arguing that the Release barred the Estate’s claims. NOVA supported its position with the signed Release and affidavits from NOVA’s owner [*5] and Cosgrove. The Estate opposed and filed a cross-motion for summary judgment to preclude NOVA from relying on the Release. The parties then stipulated to stay formal discovery until the court had ruled on these motions but agreed on procedures for conducting discovery in the interim if needed. Pursuant to the stipulation, the parties deposed Horsman and filed supplemental briefing.

In June 2016 the superior court granted NOVA’s motion for summary judgment and denied the Estate’s, reasoning that the Release was valid under our precedent. This appeal followed. The Estate argues that the superior court erred in granting summary judgment because the Release did not satisfy the six elements of our test for a valid waiver.

III. STANDARD OF REVIEW

“We review grants of summary judgment de novo, determining whether the record presents any genuine issues of material fact.”1 “If the record fails to reveal a genuine factual dispute and the moving party was entitled to judgment as a matter of law, the trial court’s grant of summary judgment must be affirmed.”2 “Questions of contract interpretation are questions of law that we review de novo . . . .”3

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1 Donahue v. Ledgends, Inc., 331 P.3d 342, 346 (Alaska 2014) (citing Hill v. Giani, 296 P.3d 14, 20 (Alaska 2013)).2 Id. (citing Kelly v. Municipality of Anchorage, 270 P.3d 801, 803 (Alaska 2012)).3 Sengul v. CMS Franklin, Inc., 265 P.3d 320, 324 (Alaska 2011) (citing Norville v. Carr-Gottstein Foods Co., 84 P.3d 996, 1000 n.1 (Alaska 2004)).

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IV. DISCUSSION

Alaska Statute 09.65.290 provides that “[a] person who [*6] participates in a sports or recreational activity assumes the inherent risks in that sports or recreational activity and is legally responsible for . . . death to the person . . . that results from the inherent risks in that sports or recreational activity.” The statute does not apply, however, to “a civil action based on the . . . negligence of a provider if the negligence was the proximate cause of the . . . death.”4 Thus, in order to avoid liability for negligence, recreational companies must supplement the statutory scheme by having participants release them from liability through waivers.

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4 AS 09.65.290(c).

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Extrapolating from principles articulated in three earlier cases,5 we recently adopted, in Donahue v. Ledgends, Inc., a six-element test for finding effective waiver:

(1) the risk being waived must be specifically and clearly set forth (e.g. death, bodily injury, and property damage); (2) a waiver of negligence must be specifically set forth using the word “negligence”; (3) these factors must be brought home to the releasor in clear, emphasized language . . . ; (4) the release must not violate public policy; (5) if a release seeks to exculpate a defendant from liability for acts of negligence unrelated [*7] to inherent risks, the release must suggest an intent to do so; and (6) the release agreement must not represent or insinuate standards of safety or maintenance.6

The Estate argues that NOVA’s release does not satisfy this test. We analyze these six elements in turn and conclude that NOVA’s Release is effective.7

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5 See Donahue, 331 P.3d at 346-48 (discussing Ledgends, Inc. v. Kerr, 91 P.3d 960 (Alaska 2004); Moore v. Hartley Motors, Inc., 36 P.3d 628 (Alaska 2001); and Kissick v. Schmierer, 816 P.2d 188 (Alaska 1991)).6 Id. at 348. In Donahue, a woman sued a rock climbing gym after she broke her tibia by falling a few feet onto a mat at the instruction of an employee, and we concluded that the release barred her negligence claim. Id. at 344-45.7 Our review of the record reveals no genuine issues of material fact with respect to the existence and terms of the Release.

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A. The Release Specifically And Clearly Sets Forth The Risk Being Waived.

The Estate first argues that the Release was not a “conspicuous and unequivocal statement of the risk waived” because the Release was two-sided and the sides did not appear to incorporate each other.8 For support, the Estate cites an “analogous” Uniform Commercial Code (UCC) case from Florida for the proposition that “a disclaimer is likely inconspicuous where ‘there is nothing on the face of the writing to call attention to the back of the instrument.'”9 The Estate points out that the release in Donahue had two separate pages, and the participant initialed the first page and signed the second.10 The Estate also identifies Horsman’s confusion about whether the Release had one or two sides as evidence that the Release was not conspicuous, raising possible issues of material fact about whether Morton [*8] would have been aware of the other side or whether Cosgrove actually showed each participant both sides.11

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8 See Donahue, 331 P.3d at 348.9 The Estate quotes Rudy’s Glass Constr. Co. v. E. F. Johnson Co., 404 So. 2d 1087, 1089 (Fla. Dist. App. 1981) (citing Massey-Ferguson, Inc. v. Utley, 439 S.W.2d 57 (Ky. 1969); Hunt v. Perkins Mach. Co., 352 Mass. 535, 226 N.E.2d 228 (Mass. 1967)).10 See Donahue, 331 P.3d at 345.11 The Estate raises these arguments outside the context of Donahue, but we address them here.

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We note that Participants in a recreational activity need not read a release for it to be binding if the language of the release is available to them.12 We conclude that NOVA’s Release was sufficiently clear, even without an initial block on the first side. The signature page stated, “I have read, understood, and accepted the terms and conditions stated herein,” but no terms and conditions appeared on this side. A reasonable person, after reading the word “herein,” would be on notice that the document had another side.

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12 See Donahue, 331 P.3d at 349 (citing Lauvetz v. Alaska Sales & Serv., 828 P.2d 162, 164-65 (Alaska 1991)).

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The Estate also argues that NOVA’s Release “does not specifically and clearly set forth the risk that the NOVA instructors may have been negligently trained or supervised, or that they may give inadequate warning or instructions.” But NOVA’s Release, like the release in Donahue, “clearly and repeatedly disclosed the risk of the specific injury at issue”13 — here, death by drowning. Like the plaintiff in Donahue, the Estate, “[r]ather than focusing on [the] injury[,] . . . focuses on its alleged cause,”14 i.e., negligent training or instruction. But the [*9] Release covers this risk as well; it indemnifies the “Releasees” in capital letters from liability for injury or death, “whether arising from negligence of the Releasees or otherwise,” and specifically defines “Releasees” to include “employees.” In Donahue, we also observed that “[i]t would not be reasonable to conclude that [the defendant] sought a release only of those claims against it that did not involve the acts or omissions of any of its employees.”15 Thus, the Estate’s argument that NOVA’s Release “does not specifically and clearly set forth the risk that the NOVA instructors may have been negligently trained or supervised” is not persuasive.

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13 Id. at 348.14 Id. at 349.15 Id.

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B. The Release Uses The Word “Negligence.”

Donahue provides that “a waiver of negligence must be specifically set forth using the word ‘negligence.'”16 The Estate argues that the Release’s “references to negligence are inconsistent,” and therefore it does not fulfill our requirement that a release be “clear, explicit[,] and comprehensible in each of its essential details.”17 But we concluded in Donahue that similar language satisfied this element.

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16 Id. at 348.17 Kissick v. Schmierer, 816 P.2d 188, 191 (Alaska 1991) (quoting Ferrell v. S. Nev. Off-Road Enthusiasts, Ltd., 147 Cal. App. 3d 309, 195 Cal. Rptr. 90, 95 (Cal. App. 1983)).

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The release in Donahue provided: “I hereby voluntarily release, forever discharge, and agree to [*10] indemnify and hold harmless the [defendant] from any and all claims, demands, or causes of action, . . . including any such claims which allege negligent acts or omissions of [the defendant].”18 We emphasized that “[t]he phrase ‘any and all claims’ is thus expressly defined to include claims for negligence.”19

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18 Donahue, 331 P.3d at 345.19 Id. at 349.

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Here, the Release reads, in relevant part:

I . . . HEREBY RELEASE NOVA . . . WITH RESPECT TO ANY AND ALL INJURY, DISABILITY, DEATH, or loss, or damage to persons or property incident to my involvement or participation in these programs, WHETHER ARISING FROM NEGLIGENCE OF THE RELEASEES OR OTHERWISE, to the fullest extent permitted by law.

I . . . HEREBY INDEMNIFY AND HOLD HARMLESS all the above Releasees from any and all liabilities incident to my involvement or participation in these programs, EVEN IF ARISING FROM THEIR NEGLIGENCE to the fullest extent permitted by law.

NOVA’s Release uses the word “negligence” twice, and there is no material difference between the “any and all claims” language used in Donahue and the “any and all liabilities” language used here. We therefore conclude that the Release specifically set forth a waiver of negligence.

C. The Release Uses Simple Language And [*11] Emphasized Text.

Donahue provides that The intent of a release to waive liability for negligence “must be brought home to the releasor in clear, emphasized language.”20 The Estate argues that the Release fails to use clear language or adequately define the “activity” it covered and thus does not waive liability for negligence. This argument does not withstand the application of Donahue.

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20 Id. at 348.

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In Donahue, the clauses addressing negligence “[did] not appear to be ‘calculated to conceal'” and were “in a logical place where they [could not] be missed by someone who reads the release.”21 Here, the Release uses capital letters to highlight the clauses waiving negligence. Though the clauses fall near the bottom of the page, they were certainly “in a logical place where they [could not] be missed by someone who reads the release” from start to finish, and thus under Donahue they were not “calculated to conceal.” And though these clauses contain some legalese, ” releases should be read ‘as a whole’ in order to decide whether they ‘clearly notify the prospective releasor . . . of the effect of signing the agreement.'”22 The list of inherent risks uses very simple language: “cold weather,” “[m]y sense of balance,” [*12] “drowning,” “[a]ccidents or illnesses,” and “[f]atigue, chill and/or dizziness.”

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21 Id. at 350.22 Id. at 351 (quoting Kissick, 816 P.2d at 191).

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The Release extends to other activities such as “glacier hiking and ice climbing,” but any ambiguity is cleared up by the explicit list of inherent risks relating to whitewater rafting. We therefore conclude that the Release brings home to the reader its intent to waive liability for negligence using simple language and emphasized text.

D. The Release Does Not Violate Public Policy.

Donahue requires that “the release must not violate public policy.”23 Citing no legal authority, the Estate asserts that NOVA’s waiver “unquestionably violates public policy due to its vast scope.”

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23 Id. at 348.

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“Alaska recognizes that recreational releases from liability for negligence are not void as a matter of public policy, because to hold otherwise would impose unreasonable burdens on businesses whose patrons want to engage in high-risk physical activities.”24 In evaluating public policy arguments in the context of liability waivers, we have previously considered “[o]f particular relevance . . . the type of service performed and whether the party seeking exculpation has a decisive advantage in bargaining strength because of the essential nature [*13] of the service.”25 The type of service likely to inspire additional scrutiny on public policy grounds is “a service of great importance to the public, which is often a matter of practical necessity for some members of the public.'”26 Using this analysis, we deemed an all-terrain vehicle safety course “not an essential service,” meaning that “the class providers did not have a ‘decisive advantage of bargaining strength’ in requiring the release for participation in the class.”27

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24 Id. at 348 n.34 (citing Kissick, 816 P.2d at 191).25 Moore v. Hartley Motors, Inc., 36 P.3d 628, 631 (Alaska 2001) (citing Municipality of Anchorage v. Locker, 723 P.2d 1261, 1265 (Alaska 1986)).26 Id. (quoting Locker, 723 P.2d at 1265).27 Id. at 631-32 (citing Locker, 723 P.2d at 1265).

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Similarly, here, whitewater rafting, far from being a matter of practical necessity, is an optional activity, meaning that under Moore v. Hartley Motors, Inc., NOVA did not have an advantage in bargaining strength. We therefore conclude that the Release does not violate public policy.

E. The Release Suggests An Intent To Exculpate NOVA From Liability For Employee Negligence.

Donahue provides that “if a release seeks to exculpate a defendant from liability for acts of negligence unrelated to inherent risks, the release must suggest an intent to do so.”28 But regardless of whether acts of negligence are related to inherent risks, this requirement is met when “the injury and its alleged causes are all expressly covered [*14] in the release.”29 The Estate argues that the Release does not suggest an intent to exculpate NOVA from liability for employee negligence. We disagree.

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28 Donahue, 331 P.3d at 348.29 Id. at 352.

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As we have explained, the Release specifically covered employee negligence by including “employees” in the clause releasing NOVA from liability for negligence. Because the injury — death by drowning — and its alleged cause — employee negligence — are expressly included in the Release, it satisfies this Donahue element.30

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30 We further observe that the Release’s list of inherent risks tracks some of the Estate’s allegations about employee negligence. For example, the Estate alleged that NOVA “fail[ed] to preclude those participants who were not qualified to handle the rafting trip,” but the Release discloses that a participant’s “ability to swim . . . and/or follow instructions” was an inherent risk of the trip.

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The Estate correctly notes that the Donahue release specifically covered the risk of “inadequate warnings or instructions” from employees, unlike the general reference to employee negligence here.31 Ideally NOVA’s Release would include a more detailed description of the types of negligence it covers, such as “employee negligence” and “negligent training.” But doing so is not a requirement under Donahue. We therefore conclude that the Release suggests an intent to exculpate NOVA from liability for acts of employee negligence.32

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31 Donahue, 331 P.3d at 352.32 We therefore do not reach the question whether employee negligence is unrelated to inherent risks of guided whitewater rafting. See id. at 348.

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F. The Release Does Not Represent Or Insinuate Standards Of Safety Or Maintenance.

Donahue provides that “the release agreement must not represent or insinuate standards of safety or maintenance.”33 The [*15] Estate argues that the Release violates this element with the following statement: “the concessionaire has taken reasonable steps to provide you with appropriate equipment and/or skilled guides so you can enjoy an activity for which you may not be skilled.” But this statement is introduced by the word “[a]lthough” and falls within the same sentence as the disclosure that “this activity is not without risk.” This sentence is immediately followed by a sentence indicating that “[c]ertain risks cannot be eliminated without destroying the unique character of the activity.” And the Release goes on to list 11 risks inherent in whitewater rafting. Reading the Release as a whole, we cannot conclude that it represented or insinuated standards of safety or maintenance.

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33 Id.

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We noted that the release in Donahue “highlight[ed] the fallibility of [the defendant’s] employees, equipment, and facilities.”34 Here, though the Release does not — and was not required to under the Donahue elements — go that far, it does list as inherent risks “[l]oss of control of the craft” and “sinking of the craft,” raising the possibility of human error, fallible equipment, and adverse forces of nature. The Release also [*16] makes various references to the isolated, outdoor nature of the activity — listing “[c]hanging water flow,” “inclement weather,” and the “remote” location as inherent risks.

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34 Id. at 352.

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The Estate cites Ledgends, Inc. v. Kerr35 in support of its argument that the Release impermissibly both represents a standard of maintenance and tries to disclaim liability for failing to adhere to it. In Kerr, we concluded that a release that contained statements such as “[w]hile we try to make the [premises] safe” and “[w]hile we strive to provide appropriate equipment for people of all abilities and to keep the equipment in good condition” was invalid because, read as a whole, it did “not conspicuously and unequivocally alert” participants of its scope.36 We went on to hold that “[t]he representations in the release regarding the [defendant]’s own efforts toward safety suggest that the release was predicated on a presumption that the [defendant] would strive to meet the standards of maintenance and safety mentioned in the release.”37

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35 91 P.3d 960 (Alaska 2004). Like Donahue, Kerr also arose out of an injury at an indoor rock climbing gym. Id. at 961.36 Id. at 963-64.37 Id. at 963.

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But the Release in question here is dissimilar in key ways. Compared to the release in Kerr, which contained language representing safety standards throughout,38 NOVA’s Release [*17] contains only a single half-sentence to that effect, adequately disclaimed: “Although the concessionaire has taken reasonable steps to provide you with appropriate equipment and/or skilled guides so you can enjoy an activity for which you may not be skilled, this activity is not without risk. Certain risks cannot be eliminated without destroying the unique character of the activity.” And the release in Kerr was much broader — promising to “try to make the [premises] safe” — than NOVA’s Release, which promises merely that the company takes “reasonable steps to provide . . . appropriate equipment and/or skilled guides” while acknowledging in context that these precautions could not mitigate all the risks posed by a whitewater rafting trip. The Estate’s reliance on Kerr is thus misplaced, and we conclude that the Release does not represent or insinuate standards of safety or maintenance.

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38 Id. at 963-64.

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Because it satisfies the six Donahue elements, the Release effectively waived NOVA’s liability for negligence.

V. CONCLUSION

For the reasons explained above, we AFFIRM the superior court’s grant of summary judgment in favor of NOVA.

DISSENT BY: WINFREE

DISSENT

WINFREE, Justice, with whom CARNEY, Justice, joins, dissenting.

I respectfully [*18] dissent from the court’s decision affirming summary judgment in this case. I cannot agree with the court’s conclusions that the self-titled “Participant’s Acknowledgement [sic] of Risks”1 form actually is something other than what it calls itself — i.e., a “Release” form — and that it constitutes a valid release barring the Morton estate’s claims against NOVA River Runners.2 I would reverse the superior court’s decision, hold that the purported release is not valid under our precedent, and remand for further proceedings.

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1 The document is referred to by its title throughout, but the spelling has been changed to conform to our preferred style.2 The Participant’s Acknowledgment of Risks form signed by Stephen Morton is Appendix A to this dissent.

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The court’s application of the six factors we approved in Donahue v. Ledgends, Inc.3 ignores our prior case law from which these factors derived. Most salient to the factual situation and document at issue here is Ledgends, Inc. v. Kerr, affirming a superior court decision denying summary judgment based on a release document — titled “Release of Liability — Waiver of Claims” — that was far clearer, and certainly not less clear, than the purported release in this case.4 And although our prior cases about recreational releases have not focused on a document’s title, a title alerts a reader to the document’s purpose. In each case from which the Donahue factors derived, the [*19] document’s title clearly told the signer that the document was a release or that the signer was waiving legal claims. The release in Donahue was titled “Participant Release of Liability, Waiver of Claims, Assumption of Risks, and Indemnity Agreement — Alaska Rock Gym.”5 In Kerr the form was a “Release of Liability — Waiver of Claims.”6 The rider-safety school in Moore v. Hartley Motors, Inc. presented the participant a form that instructed “You Must Read and Sign This Consent Form and Release.”7 Only in Kissick v. Schmierer did the title of the document not contain the word “release,” but that form, provided by the U.S. Air Force, was a “Covenant Not to Sue and Indemnity Agreement”8 — a title giving notice that the signer was surrendering legal rights before participating in the activity. In contrast, an “Acknowledgment of Risks” in no way alerts a reader of the possibility of waiving all negligence related to an activity. A title indicating that a document will release or waive legal liability surely is a useful starting point for evaluating the validity of a recreational release.

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3 331 P.3d 342, 348 (Alaska 2014).4 91 P.3d 960, 961 (Alaska 2004). The release language in Kerr was included as an appendix to our opinion. Id. at 963-64. The rejected release from Kerr is Appendix B to this dissent for ease of comparison with the purported release in this case.5 331 P.3d at 344.6 91 P.3d at 961.7 36 P.3d 628, 632 (Alaska 2001).8 816 P.2d 188, 190 (Alaska 1991).

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Consistent with the principle that the purpose of contract interpretation is to give effect to the [*20] parties’ reasonable expectations,9 our prior cases require us to consider the agreement as a whole10 and to resolve “any ambiguities in pre-recreational exculpatory clauses . . . against the party seeking exculpation.”11 The agreement as a whole “must ‘clearly notify the prospective releasor or indemnitor of the effect of signing the release.'”12 Applying these directives to the Acknowledgment of Risks form, I conclude the document does not clearly apprise participants that they are surrendering all claims for negligence by NOVA, particularly claims based on inadequate training.

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9 See Peterson v. Wirum, 625 P.2d 866, 872 n.10 (Alaska 1981). A release is a type of contract. See Moore, 36 P.3d at 630-31.10 Kerr, 91 P.3d at 962.11 Id. at 961 (citing Kissick, 816 P.2d at 191).12 Id. at 962 (quoting Kissick, 816 P.2d at 191).

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As can be seen in Appendix A, the Acknowledgment of Risks form’s first indication that it might be anything more than what its title suggests appears approximately three-fourths of the way down a densely printed page that, up to that point, has mentioned only “inherent risks.” There the form asks participants for a self-evaluation of their abilities. After a line break, the form asks participants to certify that they are “fully capable of participating in these activities” and will “assume full responsibility for [themselves].” Then, without another line break or any heading to signify that the form is transitioning [*21] into a liability release rather than an acknowledgment of risks, the document sets out “release” language. While parts of this section are in capital letters, they are not in bold or otherwise set off from the dense text surrounding them. In short, considering the document as a whole, the apparent intent is to hide the release language at the very bottom of a dense, one-page document with a title completely unrelated to release of liability.

Additionally, the signature page in no way alerts the reader that operative release language is contained on another page, presumably the back side of that page. The short paragraph at the top, which the court relies on to hold that the form gave participants adequate notice of the release language, says only, “I have read, understood, and accepted the terms and conditions stated herein and acknowledge that this agreement shall be binding upon myself . . . .” While the court concludes that a reasonable person “would be on notice that the document had another side” solely because of the word “herein,” the court fails to explain its conclusion. In fact, Morton’s companion who was an experienced adventure traveler as well, Horsman, remembered the document [*22] consisting of only one page. As he put it, “[T]he way I read it is ‘conditions herein.’ Well, there’s not much herein . . . .”

In addition to the document’s overall structure, the Acknowledgment of Risks form fails to comply with several standards we previously have applied to recreational activity releases. Specifically, the mere inclusion of the word “negligence” in the release language is insufficient to make the Acknowledgment of Risks form a full release of all claims. The release we held invalid in Kerr also used the word “negligence,” but we agreed with the superior court that “[w]hen read as a whole” the purported release did “not clearly and unequivocally express an intent to release the Gym for liability for its own future negligence” with respect to all matters referenced in the release.13

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13 Id. at 963.

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The superior court’s Kerr decision, which we adopted and published as expressing our own view, highlighted the ineffectiveness of a release that did not “clearly alert climbers that they [were] giving up any claims that the Gym failed to meet the standards of maintenance and safety that the Gym specifically indicate[d] in the release that it [would] strive to achieve and upon which the release [*23] [might] have been predicated.”14 This is precisely what the Morton estate agues here: the Acknowledgment of Risks form promised participants that NOVA would provide adequately skilled guides but did not alert participants that they were giving up claims based on NOVA’s negligent failure to provide adequately skilled guides.

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14 Id.

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

NOVA indicated in its Acknowledgment of Risks form that it had “taken reasonable steps to provide [a participant] with appropriate equipment and/or skilled guides so [the participant] can enjoy an activity for which [he] may not be skilled.” This is a representation that NOVA’s guides were adequately skilled to provide participants an enjoyable trip — not one fraught with danger.15 The Morton estate alleged in its complaint that NOVA’s guides were inadequately trained and did not properly screen participants to preclude those who were unable “to handle the rafting trip” from participating. Both specific allegations related to negligent training or failure to provide guides who were adequately skilled to assist unskilled participants to safely complete the trip. The Acknowledgment of Risks form, like the defective release in Kerr, can hardly be said to give a participants [*24] notice that the participants were surrendering claims related to negligent training or supervision.16

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

15 The release could be read as requiring NOVA to provide either “appropriate equipment” or “skilled guides” but not both. But a reasonable person with no skill in rafting would almost certainly infer that NOVA intended to provide both appropriate equipment and skilled guides on a trip with Class V rapids.16 See Kerr, 91 P.3d at 963 (holding that release did not bar negligent maintenance claim because release promised to “strive to achieve” safety standards).

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

The court concludes otherwise because the express statement that NOVA would provide skilled guides is in a sentence that also says rafting “is not without risk” and the Acknowledgment of Risks form then lists several inherent risks of rafting. But none of the listed risks is in any way related to unskilled guides or negligence in screening other participants.17 To the contrary, the enumerated risks focus on environmental and personal factors and include natural conditions, such as “[c]hanging water flow,” “presence of marine life,” and adverse weather; personal characteristics of the participant like “sense of balance, physical coordination, ability to swim, walk and/or follow instructions” and “[f]atigue, chill and/or dizziness, which may diminish [the participant’s] reaction time and increase the risk of accident”; and the risk of an accident “occurring in remote places where there are no available medical facilities.” The Acknowledgment of Risks form does not include — as the release in Donahue did — risks related to other participants’ “limits”18 or to employees’ “inadequate warnings [*25] or instructions” that might lead to injury.19 In other words, the Acknowledgment of Risks form did not meet the fourth characteristic of a valid release — it did not suggest an intent to release NOVA from liability for negligent acts unrelated to inherent risks.20

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

17 In contrast, the valid release we discussed in Donahue explicitly listed in the inherent risks of climbing several types of possible negligence: “improperly maintained equipment,” “displaced pads or safety equipment, belay or anchor or harness failure,” “the negligence of other climbers or spotters or visitors or participants who may be present,” “participants giving or following inappropriate ‘Beta’ or climbing advice or move sequences,” and “others’ failure to follow the rules of the [Rock Gym] . . . .” Donahue v. Ledgends, Inc., 331 P.3d 342, 350 n.46 (Alaska 2014) (alteration in original).18 Id.19 See id. at 352 (holding that release at issue “expressly covered” both the type of injury “and its alleged causes,” namely “‘inadequate warnings or instructions’ from Rock Gym instructors”).20 The court states that it “do[es] not reach the question of whether employee negligence is unrelated to inherent risks of guided whitewater rafting.” It is hard to see how negligent training or providing inadequately skilled guides would ever be related to an inherent risk of guided whitewater rafting.

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

I also disagree with the court’s holding that a release is necessarily valid when it sets out the risk of a specific injury — death by drowning in this case — but not its specific cause — negligent training and the provision of unskilled guides. In Donahue we rejected the participant’s argument that the release did not specifically and clearly set out the risks being waived because the release not only warned of a risk of falling but also cautioned that instructors and other employees could, through their negligence, cause falls or other types of injury.21 Here the only mention of employee negligence, buried at the bottom of a densely written, single-spaced document, is a description only in the most general terms. This type of general waiver simply does not specifically and clearly set out a waiver of the risk on which the Morton estate’s claim is based. The Morton estate alleges that [*26] Morton’s death by drowning was not due solely to the inherent risks of whitewater rafting the release listed, but rather to the provision of unskilled guides who did not adequately screen other participants. The document’s general language fails to specifically and clearly set out the risk of negligence alleged here.

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

21 Donahue, 331 P.3d at 348-49.

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

Today’s decision allows intentionally disguised pre-recreational activity exculpatory releases and effectively lowers the bar for their validity. Because the release does not meet the standards adopted in the precedent Donahue relied on — and because if the “Release” in Kerr was an invalid release, the “Participant’s Acknowledgment of Risks” Morton signed must be an invalid release — I respectfully dissent from the court’s opinion concluding otherwise.


Employee of one New York climbing wall sues another NYC climbing wall for injuries when she fell and her foot went between the mats.

Release thrown out because of New York’s anti-release statute and condition causing plaintiff’s injury was the risk was “un-assumed, concealed or unreasonably increased” eliminating assumption of the risk claim.

McDonald v. Brooklyn Boulders, LLC., 2016 N.Y. Misc. LEXIS 5211; 2016 NY Slip Op 32822(U)

State: New York, Supreme Court of New York, Kings County

Plaintiff: Meghan McDonald

Defendant: Brooklyn Boulders, LLC

Plaintiff Claims: negligence,

Defendant Defenses: Release and Assumption of the Risk

Holding: for the Plaintiff

Year: 2016

Summary

Another case where it appears, the court was more on the plaintiff’s side then neutral. However, you must play with the cards you are dealt. Here a person injured at a climbing gym survived a motion for summary judgment because the release violated New York’s release law, and she could not assume the risk of the mats separating because it was not obvious or known to her.

Facts

The plaintiff was an employee of another climbing wall business. She was the coach of the climbing team there. She was at the defendant’s climbing wall business either to coach her team or to climb personally, which were in dispute. While climbing on an overhang she fell and her foot went between the mats causing her injury.

The plaintiff did not pay to climb because the clubs had reciprocal agreements allowing employees to climb at other gyms for free. The mats were Velcroed together. The plaintiff sued. The defendant club filed a motion for summary judgment, and this is the court’s response to that motion.

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

The defendant argued the release should stop the plaintiff’s lawsuit, and she assumed the risk of her injury.

The plaintiff argued New York General Obligations Law (GOL) §5-326 made the release unenforceable.

The legislative intent of the statute is to prevent amusement parks and recreational facilities from enforcing exculpatory clauses printed on admission tickets or membership applications because the public is either unaware of them or not cognizant of their effect

New York General Obligations Law (GOL) §5-326 has been held to not apply to teaching, Lemoine v Cornell University, 2 A.D.3d 1017; 769 N.Y.S.2d 313; 2003 N.Y. App. Div. LEXIS 13209 (NY 2003). Because the plaintiff was there with students, the defendant argued the statute did not apply.

However, the plaintiff argued she was not teaching, just climbing with friends who were former students.

In support of her position that she was not at Brooklyn Boulders for instructional purposes, but, rather was there for a fun day of climbing, plaintiff points to her testimony that she brought some of the older members of her team to Brooklyn Boulders to climb. She testified that they all worked at The Rock Club so this was an end of summer treat for them to go and climb somewhere else and not have to work.

The other defense to New York General Obligations Law (GOL) §5-326 is there was no fee paid by the plaintiff to climb at the defendant gym. She was there because of the reciprocal program in place with her employer.

The court agreed she was not teaching and found she had paid a fee to climb at the defendant’s gym. Because the program was part of her employment compensation, she had paid a fee by taking advantage of the opportunity as an employee.

In addition, the court finds defendants’s argument that the fact that plaintiff did not pay a fee that day renders GOL §5-326 not applicable is equally unavailing. The reciprocal agreement that was in place between Brooklyn Boulders and The Rock Club, where plaintiff was employed, which allowed such employees to use other bouldering facilities without being charged a fee was a benefit of their employment and thus could be considered compensation.

The final defense was assumption of the risk. The plaintiff said she had never been to that area of the gym before, however, she did scan the area before climbing.

Under NY law, the assumption of risk defense is defined as:

The assumption of the risk defense is based on the proposition that “by engaging in a sport or recreational activity, a participant consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation”

By engaging in the activity or sport the plaintiff gives consent to the risks and limits the duty owed by the defendant. However, the risks of the activity, according to this court must be “fully comprehended or perfectly obvious.” The court then determined “Stated otherwise, the duty of the defendant is to protect the plaintiff from injuries arising out of unassumed, concealed, or unreasonably increased risks.”

Furthermore, “in assessing whether a defendant has violated a duty of care within the genre of tort-sports activities and their inherent risks, the applicable standard should include whether the conditions caused by the defendants’ negligence are unique and created a dangerous condition over and above the usual dangers that are inherent in the sport’

The Velcro connection holding the mats together was an injury for the jury to determine because the court found the condition was a concealed risk.

So Now What?

It is pretty skanky (legal word) for an employee of one gym, climbing for free, to sue another gym. I suspect the lawsuit was probably a subrogation claim where her health insurance was attempting to recover for her medical bills. However, that is just speculation.

New York General Obligations Law (GOL) §5-326 is read differently by ever judge that reviews it. Some simply say it does not apply and allows the release to prevail. Any court that seems to do an analysis of the law seems to rule on the side of the plaintiff lately. The late is left over from the days when consumers did not know what a release was and were caught off guard when they risked their neck in gyms.

However, the chances of it being repealed are slim, too many plaintiffs use the law so having a recreation business in New York requires more work on the part of the recreation provider to prove assumption of the risk.

Video’s, lengthy assumption of the risk agreements outlining the known and unknown risks and more in-depth classes for beginners and new people at the gym will be required in this jurisdiction.

Can you see this climbing coach being told she must take a one-hour class on climbing because she has never been to the gym before?

What do you think? Leave a comment.

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McDonald v. Brooklyn Boulders, LLC., 2016 N.Y. Misc. LEXIS 5211; 2016 NY Slip Op 32822(U)

McDonald v. Brooklyn Boulders, LLC., 2016 N.Y. Misc. LEXIS 5211; 2016 NY Slip Op 32822(U)

[**1] Meghan Mcdonald, Plaintiff, – against – Brooklyn Boulders, LLC., Defendant. Index No. 503314/12

503314/12

SUPREME COURT OF NEW YORK, KINGS COUNTY

2016 N.Y. Misc. LEXIS 5211; 2016 NY Slip Op 32822(U)

April 12, 2016, Decided

NOTICE: THIS OPINION IS UNCORRECTED AND WILL NOT BE PUBLISHED IN THE PRINTED OFFICIAL REPORTS.

CORE TERMS: climbing, mat, climb, team, rock climbing, recreational, leave to amend, affirmative defense, risk doctrine, instructional, bouldering, void, appreciated, concealed, teaching, training, wasn’t, amend, sport’, Rock, gym, matting, reciprocal agreement, public policy, dangerous condition, unreasonably, amusement, watching, unaware, advice

JUDGES: [*1] PRESENT: HON. MARK I. PARTNOW, J.S.C.

OPINION BY: MARK I. PARTNOW

OPINION

Upon the foregoing papers, defendant Brooklyn Boulders, LLC (defendant or Brooklyn Boulders) moves for an order: 1) pursuant to CPLR §3212 granting summary judgment and the dismissal of plaintiff Meghan McDonald’s complaint against defendant; and 2) pursuant to CPLR §3025 (b) granting defendant leave to amend its answer to the complaint to include an additional affirmative defense.

[**2] Background

Plaintiff is employed as a program director and head coach of a youth rock climbing team at The Rock Club, an indoor rock climbing gym in New Rochelle, New York and has been so employed since 2006. On September 1, 2011, plaintiff went to Brooklyn Boulders with some of the members of her youth climbing team and other adults. Brooklyn Boulders is an indoor rock climbing and bouldering facility located in Brooklyn, New York. Plaintiff testified that this trip was a treat for her team and that she would be climbing that day too. It is undisputed that plaintiff signed a waiver before she began climbing and that she did not pay an entry fee pursuant to a reciprocal agreement in place between The Rock Club and Brooklyn Boulders as well as other rock climbing facilities. After [*2] approximately one and a half hours of bouldering with her team, plaintiff went to an area of the bouldering wall known as The Beast, which is very challenging in that it becomes nearly horizontal for some distance. It was her first time on the Beast, although she had been to Brooklyn Boulders on prior occasions. Plaintiff testified that she visually inspected the area below the Beast before she began her climb. Lance Pinn, the Chief Marketing Officer, President and founder of Brooklyn Boulders testified that there was foam matting system in place, with matting wall to wall in the area of the Beast. The largest pieces available were 9 feet by 7 feet so the area where the foam pieces met when placed on the ground was covered with Velcro to keep the foam matting pieces flush together.

[**3] Plaintiff finished her upward climb and then climbed down as far as she could and then looked down below to make sure there were no shoes in her way and that her spotter was out of the way. She stated that she knew that there were mats underneath so she jumped down a distance of approximately five feet. Her right foot landed on the mat but her left foot landed on the Velcro strip where two floor mats met. [*3] She testified that her left foot went through the Velcro into a space between the two mats. Plaintiff sustained an ankle fracture as a result and required surgeries and physical therapy.

Brooklyn Boulders’ Motion

Brooklyn Boulders moves for an order: 1) pursuant to CPLR §3212 granting summary judgment and the dismissal of plaintiff’s complaint against defendant; and 2) pursuant to CPLR §3025 (b) granting defendant leave to amend its answer to the complaint to include an additional affirmative defense.

Defendant argues that the liability waiver that plaintiff signed when she entered the facility releases it from liability. Defendant maintains that plaintiff was an expert climber and coach and understood the meaning of the waiver and appreciated the assumption of risk involved in the activity that she was engaged. Defendant also points out that she did not pay a fee to climb that day based upon the reciprocal program in place with other climbing facilities. Defendant claims that plaintiff was instructing her students that day as they observed her climbing and point to her testimony as follows:

[**4] Q: And were you teaching them, you know, what to do and what not to do?

A: I wasn’t teaching them, but if they had a question [*4] they would ask me hey, should I do this or do this or what do you think of this move I always give advice. (Page 30, lines 12-17).

Q. Did you ever teach any or give any instruction there?

A. Just of terms of like in my kids I probably give instruction everywhere I go. There are so many people that climb at Brooklyn Boulders that are total beginners. I’m often spotting brand new people and telling them how to spot one another. (Page 45, lines 5-12).

Defendant notes that although General Obligations Law (GOL) §5-326 renders contract clauses which release certain entities from liability void as against public policy, activities which are “instructional” as opposed to recreational are found to be outside the scope of GOL §5-326. Defendant maintains that here, plaintiff was at Brooklyn Boulders to instruct her team members and thus GOL §5-326 is not applicable. Moreover, defendant argues that the waiver at issue was explicit, comprehensive and expressly provided that Brooklyn Boulders was released from liability for personal injuries arising out of or connected with plaintiff’s participation in rock climbing.

In support of its motion, defendant submits the signed waiver which states, in pertinent part:

I acknowledge [*5] that climbing on an artificial climbing wall entails known and unanticipated risks which could result in physical or emotional injury, paralysis, death, or damage to myself, to property, or third parties. I understand that such risks simply cannot be eliminated without jeopardizing the essential [**5] qualities of the activity. I have examined the Climbing Wall and have full knowledge of the nature and extent of the risks associated with rock climbing and the use of the Climbing Wall, including but not limited to:

a:. All manner of injury resulting from my falling off or from the Climbing Wall and hitting the floor, wall faces, people or rope projections, whether permanently or temporarily in place, loose and/or damaged artificial holds, musculoskeletal injuries and/or overtraining; head injuries; or my own negligence . . . I further acknowledge that the above list is not inclusive of all possible risks associated with the Climbing Wall and related training facilities and I agree that such list in no way limits the extent or reach of this Assumption of Risk, Release and Indemnification . . .

Defendant also argues that since plaintiff did not pay a fee to climb that day that her activity was [*6] outside the scope of GOL §5-326.

Next defendant argues that the assumption of risk doctrine bars plaintiff’s claims because, as a general rule, a plaintiff who voluntarily participates in a sporting or recreational event is held to have consented to those commonly appreciated risks that are inherent in, and arise out of, the nature of the sport generally and flow from participation in such event.

Finally, defendant argues that it should be allowed to amend its answer to assert the affirmative defense of release. Defendant contends that it was unaware of the existence of the release and waiver when it served its answer. Moreover, defendant contends that plaintiff will not be prejudiced because she was, in fact, questioned about the release that she signed during her deposition.

[**6] Plaintiff opposes defendant’s motion arguing that General Obligations Law §5-326 renders the waiver and release that she signed void. She points out that defendant is attempting to circumvent this law by asserting that the activity in which plaintiff was involved was instructional as opposed to recreational and misstates her testimony in an attempt to mislead the court. Plaintiff contends that such behavior should be sanctioned. In support of her position [*7] that she was not at Brooklyn Boulders for instructional purposes, but, rather was there for a fun day of climbing, plaintiff points to her testimony that she brought some of the older members of her team to Brooklyn Boulders to climb. She testified that they all worked at The Rock Club so this was an end of summer treat for them to go and climb somewhere else and not have to work. (Page 62, lines 5-13). She further points to the following testimony:

Q: In September of 2011 when you went there on the date in question what was your purpose of being there?

A: I went there with a handful of kids who are on my climbing team, but it wasn’t a specific training day. Usually when we go it would be for training but this was just like a fun day. I was going to climb with them.

Q: And were they climbing around you.

A: Yeah, they were.(page 29, lines 14-25).

Q: And were you supervising them?

A: I wasn’t their active supervisor. I’m a coach though so I’m always watching what they do. But this was one of the few times that I was actually going to be climbing so it was kind of a treat for them I guess to be able to climb with me.

[**7] Q: Were they watching you?

A: A few of them were watching me yeah.

Q: And were [*8] you teaching them, you know, what to do and what not to do?

A: I wasn’t teaching them, but if they had a question they would ask me hey, should I do this or do this or what do you think of this move I always give advice (page 30, lines 2-17).

Plaintiff also contends that defendant incorrectly argues that GOL §5-326 does not apply because she cannot be classified a user since she did not pay to climb that day. In this regard, plaintiff contends that she is indeed a user and the law is applicable because there was a reciprocal agreement between the gym at which she was employed and Brooklyn Boulders pursuant to which employees were not required to pay a fee to use either gym. Thus, she contends the value of the reciprocity agreement is the compensation.

Next, plaintiff argues that the assumption of risk doctrine is not applicable where the risk was un-assumed, concealed or unreasonably increased. Plaintiff argues that the question of whether the gap in the mats at Brooklyn Boulders is a commonly appreciated risk inherent in the nature of rock climbing necessitates denial of the summary judgment motion. She claims that she did not assume the risk that there would be a gap in the matting that was in [*9] place as protection from a fall. Moreover, plaintiff maintains that defendant fails to proffer any evidence demonstrating when the mats were last inspected prior to plaintiff’s accident.

Plaintiff argues that issues as to whether dangerous or defective conditions exist on property and whether the condition is foreseeable can only be answered by a jury. Thus, she [**8] contends that whether the condition of the mats was dangerous and/or defective is an issue of fact and that defendant has failed to proffer any evidence that the mats were in a reasonably safe condition.

Finally, plaintiff opposes defendant’s request to amend its answer to add the affirmative defense of waiver. Plaintiff argues that the existence of the waiver was known and that it is disingenuous at best to assert otherwise. Plaintiff contends that this request, post note of issue, is highly prejudicial to plaintiff.

In reply, defendant argues that plaintiff’s demand for sanctions lacks merit and that plaintiff’s testimony establishes that she was in fact, instructing her students when her accident occurred. Defendant contends that the waiver applies. Next defendant claims that as far as inspection of its equipment it had a [*10] route setting department that checked its walls and mats and that bouldering climbers were responsible for enuring their own safety when climbing. Finally, defendant argues that the assumption of risk doctrine applies and that plaintiff visually inspected the area before the accident and that the Velcro covers were visible and moreover, she had the option to use additional mats underneath her while climbing. Defendant further contends that the mats did not constitute a dangerous condition. Finally, Brooklyn Boulders reiterates its request for leave to amend its answer to assert the affirmative defense.

[**9] Discussion

Leave to Amend

Generally, in the absence of prejudice or surprise to the opposing party, leave to amend pleadings should be freely granted unless the proposed amendment is palpably insufficient or patently devoid of merit (Yong Soon Oh v Hua Jin, 124 AD3d 639, 640, 1 N.Y.S.3d 307 [2015]; see Jones v LeFrance Leasing Ltd. Partnership, 127 AD3d 819, 821, 7 N.Y.S.3d 352 [2015]; Rodgers v New York City Tr. Auth., 109 AD3d 535, 537, 970 N.Y.S.2d 572 [2013]; Schwartz v Sayah, 83 AD3d 926, 926, 920 N.Y.S.2d 714 [2011]). A motion for leave to amend is committed to the broad discretion of the court (see Ravnikar v Skyline Credit-Ride, Inc., 79 AD3d 1118, 1119, 913 N.Y.S.2d 339 [2010]). However, where amendment is sought after the pleader has filed a note of issue, “a trial court’s discretion to grant a motion to amend should be exercised with caution” (Harris v Jim’s Proclean Serv., Inc., 34 AD3d 1009,1010, 825 N.Y.S.2d 291 [3d Dept 2006]).

Here, while the court is not satisfied with counsel’s explanation that he was unaware of the [*11] existence of the release and waiver signed by plaintiff at the time that the original answer was served, the court notes that plaintiff was questioned about the release and waiver during her May 6, 2014 deposition so the court finds that there is no surprise of prejudice in allowing defendant leave to serve its amended answer and assert the affirmative defense of release and waiver. Accordingly, that branch of defendant’s motion seeking leave to amend its answer to the complaint to include this affirmative defense is granted.

[**10] General Obligations Law §5-326

GOL §5-326 states that:

Every covenant, agreement or understanding in or in connection with, or collateral to, any contract, membership application, ticket of admission or similar writing, entered into between the owner or operator of any pool, gymnasium, place of amusement or recreation, or similar establishment and the user of such facilities, pursuant to which such owner or operator receives a fee or other compensation for the use of such facilities, which exempts the said owner or operator from liability for damages caused by or resulting from the negligence of the owner, operator or person in charge of such establishment, or their agents, servants or employees, shall [*12] be deemed to be void as against public policy and wholly unenforceable.

Such contracts or agreements are void as against public policy unless the entity can show that its facility is used for instructional purposes as opposed to recreational purposes. “The legislative intent of the statute is to prevent amusement parks and recreational facilities from enforcing exculpatory clauses printed on admission tickets or membership applications because the public is either unaware of them or not cognizant of their effect (see Lux v Cox, 32 F.Supp.2d 92, 99 [1998]; McDuffie v Watkins Glen Int’l, 833 F. Supp. 197, 202 [1993] ). Facilities that are places of instruction and training (see e.g. Millan v Brown, 295 AD2d 409, 411, 743 N.Y.S.2d 539 [2002]; Chieco v Paramarketing, Inc., 228 AD2d 462, 463, 643 N.Y.S.2d 668 [1996]; Baschuk v Diver’s Way Scuba, 209 AD2d 369, 370, 618 N.Y.S.2d 428 [1994] ), rather than “amusement or recreation” (see e.g. Meier v Ma-Do Bars, 106 AD2d 143, 145, 484 N.Y.S.2d 719 [1985] ), have been found to be outside the scope of the statute. “In assessing whether a facility is instructional or recreational, courts have [**11] examined, inter alia, the organization’s name, its certificate of incorporation, its statement of purpose and whether the money it charges is tuition or a fee for use of the facility” (Lemoine v Cornell Univ., 2 AD3d 1017, 1019, 769 N.Y.S.2d 313 [2003], lv denied 2 NY3d 701, 810 N.E.2d 912, 778 N.Y.S.2d 459 [2004]). In cases involving a mixed use facility, courts have focused less on a facility’s ostensible purpose and more on whether the person was at the facility for the purpose of receiving instruction (Id. At 1019; see Scrivener v Sky’s the Limit, 68 F Supp 2d 277, 281 [1999]; Lux v Cox, 32 F Supp 2d at 99). Where [*13] a facility “promotes . . . a recreational pursuit, to which instruction is provided as an ancillary service,” General Obligations Law § 5-326 applies even if the injury occurs while receiving instruction (Debell v Wellbridge Club Mgt., Inc., 40 AD3d 248, 249, 835 N.Y.S.2d 170 [2007]; Bacchiocchi v Ranch Parachute Club, 273 AD2d 173, 175, 710 N.Y.S.2d 54 [2000]).

Here, defendant asserts that GOL §5-326 is not applicable because plaintiff was at Brooklyn Boulders to instruct her team members. The court disagrees. Plaintiff’s testimony establishes that she was at Brooklyn Boulders with her team for a day of fun and not to teach them how to climb. Her testimony that she would give advice to the students if they asked does not rise to the level of providing rock climbing instruction on that day. Moreover, the court notes that the cases invloving the exemption for instrctional activities generally involve the person being instructed sustaining an injury and not the person who was providing the instruction. In addition, the court finds defendants’s argument that the fact that plaintiff did not pay a fee that day renders GOL §5-326 not applicable is equally unavailing. The reciprocal agreement that was in place between Brooklyn Boulders and The Rock Club, [**12] where plaintiff was employed, which allowed such employees to use other bouldering facilities without being charged a fee was a benefit of [*14] their employment and thus could be considered compensation. Accordingly, the court finds that the release and waiver signed by plaintiff is void pursuant to GOL §5-326.

Assumption of Risk

The assumption of the risk defense is based on the proposition that “by engaging in a sport or recreational activity, a participant consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation” (Morgan v State of New York, 90 NY2d 471, 484, 685 N.E.2d 202, 662 N.Y.S.2d 421 [1997]; Paone v County of Suffolk, 251 AD2d 563, 674 N.Y.S.2d 761 [2d Dept 1998]), including the injury-causing events which are the known, apparent, or reasonably foreseeable risks of the participation (see Rosenbaum v Bayis Ne’Emon Inc., 32 AD3d 534, 820 N.Y.S.2d 326 [2d Dept 2006]; Colucci v Nansen Park, Inc., 226 AD2d 336, 640 N.Y.S.2d 578 [2d Dept 1996]). A plaintiff is deemed to have given consent limiting the duty of the defendant who is the proprietor of the sporting facility “to exercise care to make the conditions as safe as they appear to be. If the risks of the activity are fully comprehended or perfectly obvious, plaintiff has consented to them and defendant has performed its duty” (Turcotte v Fell, 68 NY2d 432, 502 N.E.2d 964, 510 N.Y.S.2d 49 [1986]). Stated otherwise, the duty of the defendant is to protect the plaintiff from injuries arising out of unassumed, concealed, or unreasonably increased risks (see Manoly v City of New York, 29 AD3d 649, 816 N.Y.S.2d 499 [2d Dept 2006]; Pascucci v Town of Oyster Bay, 186 AD2d 725, 588 N.Y.S.2d 663 [2d Dept 1992]). It is well settled that “awareness of [**13] risk is not to be determined in a vacuum. It is, rather, to [*15] be assessed against the background of the skill and experience of the particular plaintiff” (Maddox v City of New York, 66 NY2d 270, 278, 487 N.E.2d 553, 496 N.Y.S.2d 726 [1985]; see also Benitez v New York City Bd. of Educ., 73 NY2d 650, 657-658, 541 N.E.2d 29, 543 N.Y.S.2d 29 [1989]; Turcotte v Fell, 68 NY2d 432, 440, 502 N.E.2d 964, 510 N.Y.S.2d 49 [1986]; Latimer v City of New York, 118 AD3d 420, 421, 987 N.Y.S.2d 58 [2014]). When applicable, the assumption of risk doctrine “is not an absolute defense but a measure of the defendant’s duty of care” (Turcotte v Fell, 68 NY2d at 439). Thus, “a gym or athletic facility cannot evade responsibility for negligent behavior ‘by invoking a generalized assumption of risk doctrine as though it was some sort of amulet that confers automatic immunity’ (Jafri v Equinox Holdings, Inc., 2014 N.Y. Misc. LEXIS 5330, 4-5 [Sup. Ct, New York County quoting Mellon v Crunch & At Crunch Acquisition, LLC, 32 Misc 3d 1214[A], 934 N.Y.S.2d 35, 2011 NY Slip Op 51289[U] [Sup Ct, Kings County 2011]; Livshitz v United States Tennis Assn. Natl. Tennis Ctr., 196 Misc 2d 460, 466, 761 N.Y.S.2d 825 [Sup Ct, Queens County 2003]).

Furthermore, “in assessing whether a defendant has violated a duty of care within the genre of tort-sports activities and their inherent risks, the applicable standard should include whether the conditions caused by the defendants’ negligence are unique and created a dangerous condition over and above the usual dangers that are inherent in the sport’ (Morgan, 90 NY2d at 485. quoting Owen v R.J.S. Safety Equip., 79 NY2d 967, 970, 591 N.E.2d 1184, 582 N.Y.S.2d 998 [1992]; Georgiades v Nassau Equestrian Ctr. at Old Mill, Inc., 134 AD3d 887, 889, 22 N.Y.S.3d 467 [2d Dept 2015]; Weinberger v Solomon Schechter Sch. of Westchester, 102 AD3d 675, 678, 961 N.Y.S.2d 178 [2d Dept 2013]). Participants, however, do not assume risks which have been unreasonably increased or [**14] concealed over and above the usual dangers inherent in the activity (see Morgan, 90 NY2d at 485; Benitez, 73 NY2d at 657-658; Muniz v Warwick School Dist., 293 AD2d 724, 743 N.Y.S.2d 113 [2002]).

In this regard, the court finds that plaintiff has raised a question of fact regarding whether the condition of the mats, with the Velcro connection, increased the risk in the danger [*16] of the activity and caused a concealed dangerous condition. Thus it cannot be said that plaintiff assumed the particular risk that was present and caused her injuries.

Based upon the foregoing, that branch of Brooklyn Boulders motion seeking summary judgment dismissing plaintiff’s complaint is denied.

The foregoing constitutes the decision and order of the court.

ENTER,

/s/ Mark I Partnow

J. S. C.

HON. MARK I PARTNOW

SUPREME COURT JUSTICE


Whitewater rafting release upheld by the Alaska Supreme Court.

Language in the release stated the defendant would and had done their best to keep people adequate… that language almost voided the release. Don’t put in a release information that can be used against you!

Langlois v. Nova River Runners, Inc., 2018 Alas. LEXIS 31

State: Alaska, Supreme Court of Alaska

Plaintiff: Vanessa L. Langlois, Personal Representative of the Estate of Stephen J. Morton

Defendant: Nova River Runners, Inc.

Plaintiff Claims: Wrongful Death and multiple theories of Negligence

Defendant Defenses: Release

Holding: For the Defendant

Year: 2018

Summary

The deceased died whitewater rafting. Alaska has a six-prong test to determine if a release is valid. Here, the plaintiff argued the release in question failed on every point.

The Alaskan Supreme Court disagreed; however, on a few of the issues, the court struggled to have this release meet the requirements needed.

Facts

The defendant operated whitewater raft trips on Six Mile Creek near Hope, Alaska. The deceased signed a release prior to going rafting. No one could remember if the deceased read both sides of the release, however, ample time was given so the release could have been read.

The release is a 2-sided document. One side is labeled Participants Acknowledgment of Risk. The other side is where the participants acknowledge they have read the release.

The raft trip consists of three canyons. After the first two canyons, the participants are given an opportunity to get off the trip because the third canyon is the hardest. The deceased did not leave the trip. Sometime in the canyon is raft capsized, and the decedent died.

The spouse of the deceased brought his lawsuit on her behalf and as the executor (personal representative) of the estate. The trial court dismissed the plaintiff’s claims after the defendant filed a motion for summary judgment based on the release signed by the deceased. The plaintiff appealed.

The decision was heard by the Alaska Supreme Court. Alaska does not have an intermediate appellate court so appeals from the trial court go to the Supreme Court.

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

Alaska has a statute, Alaska Statute 09.65.290, that protects recreational defendants from liability from the inherent risks of the activity. The court recognized the statute is weak and stated that business in Alaska must supplement their protection by using a release.

The Alaska Supreme Court decided one prior decision concerning releases Donahue v. Ledgends, Inc., 2014 Alas. LEXIS 153, See Alaskan Supreme Court upholds releases for climbing gym and sets forth requirements on how releases will be upheld in AK. The court relied on its prior decision in Donahue to support its decision here.

In Donahue, the court created a six-part test to test the validity of a release.

…(1) the risk being waived must be specifically and clearly set forth (e.g. death, bodily injury, and property damage); (2) a waiver of negligence must be specifically set forth using the word “negligence”; (3) these factors must be brought home to the releasor in clear, emphasized language . . . ; (4) the release must not violate public policy; (5) if a release seeks to exculpate a defendant from liability for acts of negligence unrelated to inherent risks, the release must suggest an intent to do so; and (6) the release agreement must not represent or insinuate standards of safety or maintenance.

The plaintiff argued the release in this case did not satisfy the requirements set forth in Donahue.

The first argument was the release was not conspicuous and unequivocal because the release was two sided, and the sides did not appear to incorporate or be connected to each other.

The court did not agree with the argument because whether or not it was two different documents and whether or not the deceased read both sides was irrelevant because he signed the document. “We note that Participants in a recreational activity need not read a release for it to be binding if the language of the release is available to them.

The next argument was different.

The Estate also argues that NOVA’s Release “does not specifically and clearly set forth the risk that the NOVA instructors may have been negligently trained or supervised, or that they may give inadequate warning or instructions.”

The court found that the language in the release was broad enough to cover this claim.

However, the Release covers this risk as well; it indemnifies the “Releasees” in capital letters from liability for injury or death, “whether arising from negligence of the Releasees or otherwise,” and specifically defines “Releasees” to include “employees.”

The court also found that in Donahue,

…we also observed that “[i]t would not be reasonable to conclude that [the defendant] sought a release only of those claims against it that did not involve the acts or omissions of any of its employees.”

The plaintiffs then argued that a release must use the word negligence in it. This is a requirement of many states. Here, however, the argument failed because the release did use the term negligence, several times. The plaintiff’s argued that each time the word negligence was used, it was used in a way that was different from the prior ways so the release was not clear and explicit.

Next the plaintiff’s argued the language was not clear and did not adequately define the activity. The court found this release used capital letters to highlight the clauses waiving negligence, and the negligence clause was not concealed from view.

The clause contained some legalese; however, releases should be read “as a whole” to determine whether or not the language in the release “clearly notify the prospective releasor of the effect of signing the agreement.”

The release was a general release in that it also included release language for glacier hiking and ice climbing. However, the inherent risks outlined in the release were the risks of whitewater rafting. With that risk language, the court found the reader would know they were signing a release.

Based on that language it is obvious the release would fail for ice climbing and glacier hiking?

The plaintiff’s argued the release violated public policy. However, the court outlined Alaska’s definition of public policy in relation to recreation activities.

In evaluating public policy arguments in the context of liability waivers, we have previously considered “[o]f particular relevance . . . the type of service performed and whether the party seeking exculpation has a decisive advantage in bargaining strength because of the essential nature of the service.”25 The type of service likely to inspire additional scrutiny on public policy grounds is “a service of great importance to the public, which is often a matter of practical necessity for some members of the public.

A release for recreational activities does not violate public policy in Alaska.

The plaintiffs also argued the “release suggests an intent to exculpate nova from liability for employee negligence.

The court said, yes it does and that is OK. However, the court also specifically identified weaknesses in the release in this area. However, the weaknesses were not enough to void the release.

Ideally NOVA’s Release would include a more detailed description of the types of negligence it covers, such as “employee negligence” and “negligent training.” But doing so is not a requirement under Donahue. We therefore conclude that the Release suggests an intent to exculpate NOVA from liability for acts of employee negligence.

The plaintiffs also argued the defendants violated their own requirements set forth in the release. The release stated:

“…the concessionaire has taken reasonable steps to provide you with appropriate equipment and/or skilled guides so you can enjoy an activity for which you may not be skilled.”

The court worked around this stating the language before and after this [stupid] section defined the risks of the activity, which should have shown the deceased that no matter what steps taken, there were still risks. The court stated, read as a whole, the release outlined numerous risks of whitewater rafting.

The plaintiff argued a case out of Florida, which also had numerous safety standards the defendant promised to meet and had not, should be controlling here. The court had been struggling through four paragraphs eventually concluded.

NOVA’s Release contains only a single half-sentence, to that effect, adequately disclaimed: “Although the concessionaire has taken reasonable steps to provide you with appropriate equipment and/or skilled guides so you can enjoy an activity for which you may not be skilled, this activity is not without risk. Certain risks cannot be eliminated without destroying the unique character of the activity.” And the release in Kerr was much broader — promising to “try to make the [premises] safe” — than NOVA’s Release, which promises merely that the company takes “reasonable steps to provide . . . appropriate equipment and/or skilled guides” while acknowledging in context that these precautions could not mitigate all the risks posed by a whitewater rafting trip. The Estate’s reliance on Kerr is thus misplaced, and we conclude that the Release does not represent or insinuate standards of safety or maintenance.

The court found the release met all the six requirements needed in Alaska to be a release and upheld the trial court’s dismissal of the plaintiff’s claims.

So Now What?

If your release, and I hope, it does, covers more than one page, make sure the pages connect or relate to each other. First, if on just one piece of paper, at the bottom of each page put in the footer, “Please Read Other Side.” If the release is more than two pages, besides the admonition to read the other side include page numbers on the document.

Write the document so it flows. You don’t have to have a heading at the top of each page. The two different headings in this case raised the argument it was two separate and unrelated documents. If the document were two different documents, then the first page should have had a signature line also, which is what the plaintiff argued. With no signature line, the first page of the document was a separate document and could not be held against the deceased.

If the writing flows, the paragraph or idea continues on the next page, then this would have been a non-issue.

Next you have to write your release to cover not only could happen but will happen, and it is all tied back to your employees. Always protect your employees and write the release broadly so it covers all the possible actions or acts an employee could take that may lead to a claim.

Never create in your release in a way for the plaintiff to sue you. Never make promises, never say you operate at a level, never say you use the best or even adequate anything. That language in this release almost was enough to defeat the release, and it was obvious the court struggled to find a very weak argument to beat this part of the plaintiff’s claims.

What do you think? Leave a comment.

Copyright 2018 Recreation Law (720) 334 8529

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Accreditation is marketing. In fact, it may be why you are being sued.

Marketing is not a way to manage risks or stop lawsuits. Marketing Makes Promises that Risk Management Must Pay For.

In an effort to sell services and promote their organization, many trade associations accredit, certify or anoint its members, with various titles, quasi degrees and paper to put on their wall and website. There is always a charge for the program and in many cases; the trade association’s budget is based on selling this program. Many times, these new programs are sold as a cure-all or at least help in risk management or litigation defense.

They are neither. At best, these are training programs; generally, they have little value other than for marketing. Worse, an accreditation can help you lose a lawsuit.

Several trade associations offer this marketing program as a way to show your future clients that you uphold the standards, or whatever of the trade association. (Ignoring the issue that people want to know if you meet their standards, not those of a trade association.) If you pay for the program you will be inspected/reviewed by “trained” members of the association who, then say you have a qualifying program or not. A trade organization will offer the idea that accreditation can provide risk management or better defenses to litigation. Because the program is up to speed on the latest and greatest or at least the tried and true for its industry.

These generally fail for several reasons.

  • Because no trade association represents a large segment of the industry and in most cases, they represent less than half of the trade. Granted, the better programs are usually members of the trade association, but that still does give them the clout or numbers needed to dictate how a member should run its business.
  • There are dozens of instances where a different way is being used, successfully by other members or non-members of the association. Consequently, the association’s way is proved ineffective or just not the only way.
  • State laws and prior litigation have changed the standards, and the trade association has not caught up making their standards look dated.

On top of that, trade associates move by their members. A new idea developed and used by one member needs to float t the surface and be discovered by the group writing the standards. By the time that happens, the standard is written, vetted, reviewed and published several years have passed. You need to react immediately to changes in your industry, not wait for someone to write it down.

Worse no new ideas are created because of fear that the idea will not qualify under the accreditation program creating liability for the member. If you develop a new way to run a program, that is safer but requires less people, you will be liable if you run the program without the required number of people because the association standard requires it. Even if your new idea has that extra person just standing around.

Marketing is not a defense against a lawsuit.

As much as we may wish, showing that an organization may hold itself to a higher standard to prevent litigation or help win a lawsuit, does not work. Standards of care or levels of doing something are not created by trade associations. The issue at trial is whether or not the defendant in litigation is determined by the jury to have met the standard of care proposed by the Expert Witnesses in the trial. Trying does not change that; trying to be good, trying to stay on top of things, trying to be educated does not cause a change.

In reality, it is a minimum two-step process that keeps one from losing in court. The first step is staying current. The second step is staying above the minimum required level of care a jury will accept. However, even these two steps may not be enough with the volume of information that flows today, and the speed which things change. Again the definition of the problem with trade associations and accreditation. The process to create the process is always behind the time curve. As such, the program that received the blessings of the trade association is probably out of date in a courtroom.

Marketing is simply an attempt to influence the decision making of someone. If that person believes that you are a better organization or offer a better program than your competitor, then your marketing was successful. Factors too numerous to discuss and of little relevance to this article go into marketing and how it influences a person’s decision. If you believe the seal on the door or the diploma on the wall going to influence someone to try your program, then take that route, just make sure you understand what you are buying and why.

On a side note, when I had an office, I had art on the walls, Not a single degree or diploma. In twenty years, only one person asked me where my diplomas were. I did not care to look at diplomas; I wanted to look at wildlife and nature scenes. I was spending more time in the office than anyone. Twenty years and only one person cared what diploma I had.

Someone who arrives at your business is going to have higher expectations. The person who sees the promises your marketing makes is going to expect that level or greater service. That expectation will apply, even if the accreditation has nothing to do with the program or the issues of your guests. You are accredited; therefore, I should not have been hurt.

That does not mean you should not tell the world how great you are. It means you must meet the marketing you are promoting.

Marketing also affects and to some extent, shows the world how you think of yourself. A current example is zip lines. For fifty years zip lines were used by the military to train recruits and by movies about the military to thrill viewers. The next twenty years zip lines were used in team building programs as part of a ropes or challenge course. Now zip lines have been used purely as an amusement device. People go out for a day of zip lining like they used to rent go karts or play a round of golf. Your marketing efforts to steer your possible clients back to the idea of team building are going to interfere and have to overcome the general expectations that zip lines are just fun.

Accreditation meets that same issue in the minds of the people coming to your program. Is the certificate on the wall to show me how good you are or on the wall to convince me not to sue? Alternatively, is the certificate proof that you did not take the proper care of me causing my injury. Marketing to cross purposes or marketing to reverse community beliefs is difficult.

Marketing makes Promises that Risk Management has to Pay For.

As stated earlier, the expectations of someone who has researched your diplomas, seals and other marketing accomplishments are going to have a higher expectation that you are not going to injure them. Your commitment to staying current, your efforts to obtain the seal of approval and the paper on the wall are proof, in your guest’s minds, that you are better than your competitors. Better may mean to provide a better program or service. It better definitely means your participants will not be injured.

The American Camp Association (ACA) has an accreditation program that the ACA recognizes for what it is, a marketing program. “ACA Accreditation: Valuable Marketing Tools.” The web page even makes that known. (http://www.acacamps.org/accreditation/marketing). Numerous other instances can be found where accreditation is synonymous with marketing.

  • Private Duty Service Expansion through Accreditation and Marketing Excellence
  • Importance of Accreditation as a Marketing Strategy
  • Use CLE Accreditation as a Marketing Tool

Marketing is not risk management and not good at providing a defense to litigation. The two are opposite in purpose. Marketing is trying to bring people to the program by telling people the program is great and to some extent, safe. If someone is injured, then the program was not safe and the marketing was not true. Having your marketing turn on you while you are a defendant is one of the worst situations to find yourself when involved in litigation. Having your marketing prove that you were a bad operator is the worst.

That does not mean you should not get the best training you can receive in running your business, no matter what the name of the certificate you receive at the end.

Accreditation does have a legal definition and support.

Accreditation from a legal standpoint is defined by Federal Statutes. The Department of Education oversees accreditation of colleges and universities in the United States. A list of accredited college and universities and the agencies that can accredit a college or university can be found at the Department’s website. (There is also a list of those colleges that are no longer recognized.) The department of education also has a statutory scheme for determining how an educational organization will be accredited, which can be found at USC § 1099b. Recognition of accrediting agency or association.

From a legal standpoint, an accredited educational intuition is on that list. It is eligible for federal and state assistance and students of those colleges are eligible for federal financial aid.

Accreditation from any other organization for any other purpose is done to enhance or market the organization seeking the approval and the agency granting the approval. Let’s first look at what this means.

If you are not seeking to offer federal financial aid to your students or receive federal aid, then accreditation can be anything you want. If you want to be accredited, send me $10.00, and I will accredit you. (You have been accredited by James H. Moss) My accreditation has the same legal value and possibly the same marketing value as any other accreditation you can receive. The issues are not. What was done, but what can you hang on your wall and advertise to prospective clients who make you look good? (The $10 will get you a cheap diploma you have to print yourself.)

A good attorney will always look behind the diploma to see what is being covered up. Throw rugs hide spots on carpets, and pictures hide holes on the wall. Attorneys know that paperwork on the wall may be covering up something that the program felt they lacked. In some cases, he or she may only find a hole in the wall. In many cases, he will see that the accreditation is just marketing. Even without an injury that can be associated with a violation of the accreditation requirements, the attorney will use the accreditation against the organization. As the owner proudly runs through his accomplishments on the witness stand, mentioning that his organization is accredited by XYZ trade association the plaintiffs’ attorney will be prepared.

The plaintiff’s attorney will have gone through each of the accreditation requirements that the organization no longer meets or violated and have the owner admit to the problems. If the accreditation is not really based on any real requirements, (like mine), then that will also be pointed out. Either the organization manager or owner will come away looking like they bought the paper to impress guests, or they earned it and then ignored it. A marketing program gone awry.

In many cases, this “accreditation mills” type of accreditation may be probably safer from a legal perspective. There is no list of items or requirements that can be used to show you violated that as an accredited organization, you should not have broken.

You are, in fact, buying marketing when you seek accreditation. This purchase works both ways providing the accrediting agency with value because they can list the organizations that have received accreditation, thus promoting themselves. The organizations that receive accreditation have come to the trade association for its seal of approval boosting the association’s standings the eyes of the industry.

However, accreditation can have a negative side also. Accreditation usually is accompanied by a list of the requirements that must be met. The more the accrediting organization wants to promote itself the longer the list. For an agency that has been accredited, this list then becomes a set of rules which they have agreed to meet. Any failure to meet these rules or regulations cannot be violated. Example:

If the accreditation says you will have one guide per five guests any variation from this at the time of an injury, and the plaintiffs (injured person) attorney has proof that you violated your own rules or standards of operation. In effect, you have provided the plaintiffs with a list of rules which you have agreed not to violate at risk of losing your accreditation.

If accreditation was a true accreditation, it would be removed when an accredited organization fails to continue to meet accreditation. Remember the Department of Education has that list of colleges that no longer are accredited. I’ve never seen a trade association do this (doesn’t mean they don’t).

By providing the plaintiff’s attorney with a list of requirements for accreditation you have also provided the plaintiff’s attorney with the standards that you have breached. The standard is what a reasonable man or organization would do in your situation. Instead of having to dig and hire expects to achieve that information, the plaintiff only has to look up the requirements for accreditation. If the injured guest, the plaintiff’s attorney’s client, was injured when something on that list was not met, then the attorney has proof of a breach of a standard.

It is irritating to see an expert witness report from the plaintiff that goes through each of the points the defendant missed for the diploma hanging on the wall. Most times the plaintiff’s expert witness was trained by the trade association that created the accreditation.

How do you think the Defendant feels watching someone trained by an association he paid money to join and more money to receive their marketing program testify against them?

In the above case, if the accreditation required one guide per five guests and there were twenty guests than the program needs four guides. If one guide stops to look at a flower or slows to tie his shoe, the program now has one guide per 6 or seven guests. If a guest is injured at that moment, the plaintiff’s attorney will argue that the injury could have been prevented with more guides, the standard required a specific number of guides, the defendant organization knew it needed more guides, (it was accredited) and if failed to provide the necessary number of guides.

Accreditation, like any outside review can cost you.

Whenever you have someone come into a program and provide you with a review of your program, that review may come back to haunt you. It is subject to discovery in litigation. Discovery means any document or witness that may have information that may lead to information about the case must be provided to the opposing side. Any document, such as an accreditation review, whether you passed it or not, must be given to the opposing side. Consequently, you want to make sure that any outside review is done in a professional manner and that negative comments and issues are either handled correctly, fixed immediately, or are not part of the written review.

Accreditation has greater value, greater weight for the plaintiff when you have failed to meet the requirements you paid to have reviewed. If the accreditation was so valuable to you, it cost you time and money to receive, how could you, then ignore it without violating the rules?

An example of this that went wrong is the case of Adam Dzialo. (See Marketing is marketing and Risk Management is not marketing, http://rec-law.us/1bPWl1c; Money is important in some lawsuits, but the emotions that start a lawsuit., http://rec-law.us/xbSs4M; Serious Disconnect: Why people sue., http://rec-law.us/wm2cBn, Wow, someone apologized, http://rec-law.us/xEIujw) Adam was enrolled in a summer camp run by Greenfield Community College. The college had just undergone a review to achieve accreditation. The accreditation report stated the number of instructors for the whitewater class was insufficient. Adam suffered a leg entrapment during a whitewater class suffering permanent brain injuries. The number of instructors for the class was below the number required to achieve accreditation, and this became a major issue during the litigation. The review provided in the accreditation process was used by the plaintiff to argue the defendant was negligent.

The defendant was told their program was insufficient, and they ignored that notice. Is the defendant liable?!

Accreditation from the perspective of an advanced degree

If you do not want your program to be marketed as an amusement but something that provides greater benefits, you might align yourself with educational organizations. As such, an “accreditation” may add that aura of validity as an educational organization rather than a summer camp. No matter that most kids would rather go to a fun summer camp than an educational one. (Not that those concepts are totally separate.)

In a courtroom, however, the marketing will be stripped bare and what you are will be laid out in the courtroom. No matter how much money you spend on marketing, if the jury sees you as an amusement park, you are an amusement park, and your marketing program will be exposed as a ruse.

It is easy to strip away an accreditation program. A plaintiff’s lawyer simply goes to the list of developed by the US Department of Education of accreditation agencies and looks for the association that accredited you. As the defendant, you are then in a position of trying to prove the value of your accreditation or diploma on the wall. What did you pay for it and why? What value does it really have? If it is not recognized, isn’t it no more than a marketing program or worse a scam.

The department of education has a statutory scheme for determining how an educational organization will be accredited. USC § 1099b. Recognition of accrediting agency or association. The department of education itself does not accredit educational institutions.

Many times an accrediting association believes that by creating a list of objectives, rules and items to meet the accrediting goals, they have done a good job. In essence, the more rules and paper the better the accreditation. However, as the Department of Education and as most people already know, more does not mean better. The accreditation is based on the “the institution’s mission, goals and objectives, resources and resource allocation, student admission requirements, student support services and the quality of the faculty and educational offerings.” The accreditation is based on the college’s goals as well as the accrediting organizations’ goals.

More may mean very bad.

One of the basic tenets of education is teaching. Helping the student understand, comprehend and be able to use the knowledge gained. One of the tenets of accreditation is the educational organization employs instructors who know the subject matter of what they are teaching but also employs people who have been trained to teach. Very few association accreditation checklists look at whether the instructors have degrees in teaching.

Accreditation at best is just one of many ways an organization can show they strive to be as good as they can and to maintain good practices. It is among a list of things that an organization can do. That other equally important, if not more important items include constant training of employees, maintain professional relationships with trade associations and attending conferences, staying current in the industry. However, the paper on the wall or the seal of approval on the front door, do not prove that this was either effective or provides any protection. The issue is and always has been doing the defendant organization breach a duty of care to the injured plaintiff.

So, what does it mean when you do not meet the standards or accreditation of the trade association when someone was injured?

A legal duty is the duty owed to the plaintiff or what would a reasonable person do in the defendant’s situation. Duty is the first of four steps that the plaintiff must prove to prove negligence. Those steps are:

  • Duty
  • Breach of a duty
  • Injury proximately caused by the breach of duty.
  • Damages from the injury

For the plaintiff to win his or her lawsuit, the plaintiff must prove all four elements of negligence. As you can see, nothing in the definition of negligence is based on the diplomas on the wall or the certificates in a file.

The hardest part of any negligence suit to prove for the plaintiff is, was there a duty and a breach of the duty. Duty is defined as the standard of care of a reasonable person or organization in the same position as the defendant. Normally, the plaintiff and his or her attorney would hire expert witnesses to determine if the duty was breached. However, if there is a written document which the defendant has agreed to abide by in running his or her organization, the written document will be substituted by the plaintiff as the standard of care. Those requirements that you met to be accredited are then transposed by the plaintiff as the standards of care that you agreed to meet. Your agreement to meet those requirements is evidence by you proclaiming them to the guests.

By agreeing to them or by calling them standards, it is a foregone conclusion, almost, that, that is the standard of care you breached.

In effect, once accreditation is obtained, it becomes the level of operation that the organization can never fall below. It becomes a list of requirements the organization must always meet every day.

Accreditation or lack thereof, can also come back to haunt you in another way. Like any misrepresentation, if you claim you have a level of training or skill, and you don’t. That is misrepresentation or fraud. Even if the accreditation has no value as a defense and is only a marketing ploy, failure to have what you claim is fraud, and you are liable for any injury your misrepresentation caused.

A good example of that is you are accredited by XYZ Association on January 1, 2012 for a three-year term. Your accreditation says you have your staff trained in current CPR. In January of 2014, the American Red Cross changes how CPR is taught, and none of your staff are current. In fact, 99% of the people trained in CPR are no longer current. If on January 2, 2014, you have someone have a heart attack on your property who dies, are you liable because you stated and held yourself out as being accredited and yet you were not?

Professional relationships, membership in trade associations, employee training and staying current rarely have the possible kick back that the certificate on the wall may have. Those ways of maintaining professionalism do not come with a list of ways that you have failed to be professional.

Another way that any type of training can come back to haunt an industry is in raising the expectation of the guests of the industry above the normal level of care.

Any value of accreditation that once existed has been diluted by its adoption by numerous other industries. Once the sole domain of higher education, as stated earlier anyone and everyone are now offering accreditation for anything and everything. As such, the term has lost any significance in its value to the public. And that value has always been as a marketing tool rather than a legal defense.

Accreditation to be valuable must occur regularly and be current.

Another major issue is once a program receives accreditation. The program ceases to stay current. The program rests on its laurels on in this case the accreditation. The accreditation provides a false sense of accomplishment and finality, when just the opposite is true.

Staying current in an industry is the only way to stay in the winning column in litigation.

Major Organizations do not offer Accreditation.

Very few trade associations offer accreditation. They know that the cost of keeping the accreditation up to the level it should be along with the risk it subjects its membership too, do not justify the time and expense. Some of the organizations that do not offer accreditation in the outdoor recreation industry are the National Ski Area Association, Boy Scouts of America, Girl Scouts of America and America Outdoors. All of these organizations represent large groups of people. Commercial or business ventures that are serious about their business and represent a large segment of their industry.

Is Accreditation bad?

No accreditation is not a bad thing, unless you are sold on the idea and achieve the accreditation on a mistaken theory that it will assist in either staying out of court or winning in court.

However, like all programs you must know what you are buying. No longer are the days of caveat emptor the rule of the day. That legal pronouncement was created when determining the age of your transportation consisted of looking at the horse’s teeth and walking around the animal. Now days you can look at a car engine for hours and never know if it will run for a day or a lifetime.

The plaintiff is opening your program’s hood and looking forward to seeing if your program runs. You are saying it will because of the paper on the wall or the seal on your website. The trade association went through a checklist of items and issues to hand you a piece of paper. None of those items can guaranty the safety of the guest. All of those items can be used by the guest to prove the program liable and hold you and the trade association accountable.

As it applies to you when you are looking at marketing your program as well as when your clients are looking at your program. If you believe that a marketing program will protect you, you are not studying the program hard enough. Neither will accreditation guaranty the safety of your guests.

  1. Make sure you know what you are accomplishing before you start.
  2. Justify why you are going down that route.
  3. Make sure if your path can be interpreted two ways, that you cover both options to make them good ideas.
  4. If you find problems fix them immediately.
  5. You understand the difference between risk management and marketing.

References:

The Database of Accredited Postsecondary Institutions and Programs

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Plaintiff argues that release was limited to the risks that were inherent in climbing walls. Inherent is a limiting term and does not expand the scope of the risks a release is written to include.

In addition, incorrect name on the release gave plaintiff an additional argument. The LLC registered by the Indiana Secretary of State was named differently than the named party to be protected by the release.

Luck saved the defendant in this case.

Wiemer v. Hoosier Heights Indoor Climbing Facility LLC, 2017 U.S. Dist. LEXIS 149663

State: Indiana: United States District Court for the Southern District of Indiana, Indianapolis Division

Plaintiff: Alexis Wiemer

Defendant: Hoosier Heights Indoor Climbing Facility LLC,

Plaintiff Claims: Negligent Hiring and Instruction

Defendant Defenses: Release

Holding: For the Defendant

Year: 2017

Summary

Release was written broadly enough it covered negligence claims outside the normal injuries or claims from using a climbing wall. On top of that the mistakes in the release were covered by the letterhead.

Injury occurred because belayer did not know how to use the braking device.

A lot of things could have gone wrong because the climbing wall was not paying attention, but got lucky.

Facts

The plaintiff was a beginner in climbing and using climbing walls. Before climbing he signed a release and attended a facility orientation which covered training “on how to boulder, belay, and top rope climb.” The training received by the plaintiff was taught by an employee with little experience and mostly went over the defendant’s instructional books on rock climbing.

On the day of the accident, the plaintiff went to climb with a co-worker. While climbing the co-worker failed to use the belay device properly.

Incident reports indicate that Wiemer fell approximately thirty-five feet to the ground in a sitting position due to Magnus releasing a gate lever while he was belaying for Wiemer, which caused Wiemer to accelerate to the floor very quickly. As a result of the fall, he sustained severe and permanent injuries to his back, as well as impaired bladder and bowel control. Wiemer filed this action alleging Hoosier Heights was negligent in its operations. [emphasize added]

The plaintiff sued for his injuries.

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

The plaintiff’s first argument was the name of the parties to be released was not the legal name of the facility where the accident occurred. The facility was owned by a Limited Liability Company (LLC) registered with the state of Indiana as “Hoosier Heights Indoor Climbing Facility.” On the release, the name of the party to be protected was “Hoosier Heights Indoor Rock Climbing Facility.” The release name had an extra word, “rock.”

The waiver signed by Wiemer incorrectly lists the business name as ‘Hoosier Heights Indoor Rock Climbing Facility L.L.C. Hoosier Heights acknowledges that its official name is Hoosier Heights Indoor Climbing Facility LLC and that the word “Rock” does not appear in its corporate filings with the Indiana Secretary of State, although it appears on the Waiver at issue. Wiemer contends that a genuine issue of material fact exists regarding the validity of the Waiver, because the Waiver that he signed failed to name the correct entity and this inaccuracy created ambiguity as to who Wiemer contracted with.

However, the name and logo on the top of the release identified the company correctly, Hoosier Heights Indoor Climbing Facility.

Since the release was a contract, the court was required to determine if the name issue made the contract ambiguous. Ambiguous means the language of the contract could be interpreted in more than one way. The name issue was not enough to find the contract was unambiguous so that the release was not void. The name issue was minor, and the correct name was at the top of the contract.

Under these circumstances, the misidentification of Hoosier Heights does not operate to void the Waiver. Because the Waiver is unambiguous, the Court need not examine extrinsic evidence to determine the proper parties to the Waiver. Accordingly, summary judgment is denied on this basis.

The second argument the plaintiff made was the release did not cover the claimed negligence of the defendant for negligent instruction, and negligent training. Those claims are generally not defined as an inherent risk of indoor rock climbing.

The negligent training and negligent instruction claims were not based at the defendant or the belayer. Those claims were based on the employee who instructed the belayer.

Inherent is a restrictive word. See 2015 SLRA – Inherent Risk: Should the Phrase be in your Release? and Here is another reason to write releases carefully. Release used the term inherent to describe the risks which the court concluded made the risk inherently dangerous and voids the release, and is interpreted differently by various courts. Consequently, the use of the word inherent can be dangerous in that it limits the breadth of the release.

Under Indiana’s law a release must be “specific and explicitly refer to the waiving [of] that the party’s negligence.” However, that explicit reference is not necessary for a claim that is inherent in the activity.

Nevertheless, “an exculpatory clause’s lack of a specific reference to the negligence of a defendant will not always preclude the defendant from being released from liability–such as when a plaintiff has incurred damages that are inherent in the nature of the activity.”

The plaintiff’s argument was:

Wiemer contends that his fall was due to Mellencamp’s improper training and instruction and this was not a risk that he agreed to assume. Further, he argues that improper training and instruction are not risks that are inherent in the nature of rock climbing.

The court could work around this explicit necessity because it found within the release language that covered the negligent training and instruction.

…team building, fitness training regimens and equipment purchased or rented at Hoosier Heights[,]…injuries resulting from falls, equipment failures, entanglements, falling or dropped items, or the negligence of other climbers, participants, belayers, spotters, employees, or other users of the facility…

It is the intention of the undersigned individually to exempt and relieve Hoosier Heights and its employees, … from liability for any personal injury, property damage, or wrongful death caused by negligence.

By reviewing the exact language of the release, the court was able to find language that warned of the specific issues the plaintiff claimed.

Similar to the result in Anderson, by signing the Waiver, Wiemer released Hoosier Heights from any liability resulting from its own negligence, including improper training and instruction. Further, Wiemer’s injury from falling was a risk that was inherent in the activity of rock climbing and explicitly noted in the Waiver.

The negligent training and negligent instruction claims were not based at the defendant or the belayer. Those claims were based on the employee who instructed the belayer.

As such the court found that both claims were prevented by the release the plaintiff had signed and dismissed the case.

So Now What?

This case was won by the defendant not because of proper legal planning but by luck.

If they had not used the correct letterhead for the release, the release might have been void because it named the wrong party to be protected by the release. When writing a release, you need to include the legal name of the party to be protected as well as any marketing or doing business as names.

Indiana’s requirement that the language of the release cover the exact injury the plaintiff is claiming is not new in most states. It is also a requirement that seems to be growing by the courts to favor a contract that covers the complaint.

In the past, judges would specifically point out when a claimed injury was covered in the release. Not so much as a legal requirement but to point out to the plaintiff the release covered their complaint. That prior identification seems to be growing among the states to a requirement.

In this case the release was written broadly so that the restrictions the term inherent placed in the release were covered. But for that broad language, the climbing gym might now have survived the claim.

More important writing the release wrong protecting the wrong party would have been fatal in most states.

Finally, this is another example of a belay system that is perfect, and the user failed. There are belay systems out there that don’t require user involvement, they work as long as they are corrected properly. This accident could have been avoided if the belay system worked.

What do you think? Leave a comment.

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Wiemer v. Hoosier Heights Indoor Climbing Facility LLC, 2017 U.S. Dist. LEXIS 149663

Wiemer v. Hoosier Heights Indoor Climbing Facility LLC, 2017 U.S. Dist. LEXIS 149663

Alexis Wiemer, Plaintiff, v. Hoosier Heights Indoor Climbing Facility LLC, Defendant.

Case No. 1:16-cv-01383-TWP-MJD

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF INDIANA, INDIANAPOLIS DIVISION

2017 U.S. Dist. LEXIS 149663

September 15, 2017, Decided

September 15, 2017, Filed

COUNSEL: [*1] For ALEXIS WIEMER, Plaintiff: Mary Beth Ramey, Richard D. Hailey, RAMEY – HAILEY, Indianapolis, IN.

For HOOSIER HEIGHTS INDOOR CLIMBING FACILITY LLC, Defendant: Jessica Whelan, Phil L. Isenbarger, BINGHAM GREENEBAUM DOLL LLP, Indianapolis, IN.

JUDGES: TANYA WALTON PRATT, United States District Judge.

OPINION BY: TANYA WALTON PRATT

OPINION

ENTRY ON SUMMARY JUDGMENT

This matter is before the Court on Defendant Hoosier Heights Indoor Climbing Facility LLC’s (“Hoosier Heights”) Motion for Summary Judgment filed pursuant to Federal Rule of Civil Procedure 56 (Filing No. 29). Plaintiff Alexis Wiemer (“Wiemer”) brought this action against Hoosier Heights for personal injuries sustained when he fell during a rock climbing activity. For the following reasons, the Court GRANTS Hoosier Heights’ Motion for Summary Judgment.

I. BACKGROUND

The material facts are not in dispute and are viewed in a light most favorable to Wiemer as the non-moving party. See Luster v. Ill. Dep’t of Corr., 652 F.3d 726, 728 (7th Cir. 2011).

Hoosier Heights, located in Carmel, Indiana, is a limited liability company which owns and operates an indoor rock climbing facility. The facility is open to the public and is available for individuals of all skill levels in recreational climbing. In order to use the facilities, Hoosier Heights requires all patrons [*2] to sign and acknowledge having read and understood a “Waiver & Release of Liability” form (“Waiver”). (Filing No. 30-1.) The Waiver contains: general gym rules, exculpatory clauses relieving Hoosier Heights of liability, a medical authorization clause, an acknowledgement that the participant understands there are inherent risks to rock climbing with some risks listed, authorization to allow the Hoosier Heights’ staff to use any photographs taken during the patron’s visit for promotional materials, and a signature line for the participant. (Filing No. 30-1 at 1.) At the top of the Waiver is Hoosier Heights’ logo, address, and the name Hoosier Heights Indoor Climbing.

The Waiver states, in relevant part:

RELEASE AND ASSUMPTION OF RISK: In consideration of being permitted to use the facilities of Hoosier Heights Indoor Rock Climbing Facility L.L.C., and mindful of the significant risks involved with the activities incidental thereto, I, for myself, my heirs, my estate and personal representative, do hereby release and discharge Hoosier Heights Indoor Rock Climbing Facility L.L.C. (hereinafter referred to as “Hoosier Heights”) from any and all liability for injury that may result from my [*3] use of the facilities of Hoosier Heights Indoor Climbing, and I do hereby waive and relinquish any and all actions or causes of action for personal injury, property damage or wrongful death occurring to myself arising as a result of the use of the facilities of Hoosier Heights or any activities incidental thereto, wherever or however such personal injury, property damage, or wrongful death may occur, whether foreseen or unforeseen, and for whatever period said activities may continue. I agree that under no circumstances will I, my heirs, my estate or my personal representative present any claim for personal injury, property damage or wrongful death against Hoosier Heights or its employees, members, directors, officers, agents and assigns for any of said causes of actions, whether said causes of action shall arise by the negligence of any said person or otherwise.

It is the intention of the undersigned individual to exempt and relieve Hoosier Heights and its employees, members, directors, officers, agents and assigns from liability for any personal injury, property damage or wrongful death caused by negligence.

(Filing No. 30-1.) The Waiver also contained a provision enumerating the risks [*4] inherent in the sport of rock climbing:

ACKNOWLEDGMENT: I, the undersigned, acknowledge that I understand that there are significant elements of risk associated with the sport of rock climbing, including those activities that take place indoors. In addition, I realize those risks also pertain to related activities such as bouldering, incidental weight training, team building, fitness training regimens and equipment purchased or rented at Hoosier Heights. I realize that those risks may include, but are not limited to, injuries resulting from falls, equipment failures, entanglements, falling or dropped items, or the negligence of other climbers, participants, belayers, spotters, employees, or other users of the facilities. I acknowledge and understand that the above list is not inclusive of all possible risks associated with rock climbing or the use of the Hoosier Heights facilities and that other unknown and unanticipated risks may result in injury, illness, paralysis, or death.

Id. In addition to executing the Waiver, Hoosier Heights requires that all patrons attend and acknowledge undergoing orientation and training.

Wiemer visited Hoosier Heights in October 2014. On that date, he attended [*5] a facility orientation, which is an employee-guided training on how to boulder, belay, and top rope climb.1 (Filing No. 30-7.) If a customer intends to use the “top rope” climbing area of the facility, they must first complete the “top rope” orientation and initial and sign the facility orientation form in the appropriate locations. Following his orientation and training, Wiemer signed a Waiver form.

1 Top rope climbing is a style of climbing in which a rope runs from a belayer at the foot of the climbing wall which is connected to an anchor system at the top of the wall and back down to the climber. Both climber and the belayer are attached to the rope through a harness and carabiner. The belayer is responsible for pulling the slack in the rope, which results in the climber moving up the wall. The belayer must keep the rope tight so that, in the event the climber releases from the wall, the climber remains suspended in the air and does not fall.

Kayli Mellencamp (“Mellencamp”), a part-time Hoosier Heights employee with very little rock climbing experience, provided Wiemer’s orientation and training. (Filing No. 30-6.) Mellencamp’s employee training consisted solely of reviewing company provided instructional books on rock climbing and witnessing other employee orientations. (Filing No. 67-2 at 10-11 and 13-14.) Mellencamp had no other professional rock climbing experience.

On January 14, 2015, Wiemer, along with several co-workers, including Robert Magnus (“Magnus”), traveled to Hoosier Heights for recreational rock climbing. Magnus had also previously visited Hoosier Heights, and Wiemer’s and Magnus’ Waivers were already on file and under the terms of their agreements remained in effect (Filing No. 30-6; Filing No. 30-7). Wiemer [*6] was top rope climbing while Magnus belayed below (Filing No. 30-4). Unfortunately, Wiemer fell while he was climbing. Incident reports indicate that Wiemer fell approximately thirty-five feet to the ground in a sitting position due to Magnus releasing a gate lever while he was belaying for Wiemer, which caused Wiemer to accelerate to the floor very quickly. (Filing No. 30-4 at 1-4.) As a result of the fall, he sustained severe and permanent injuries to his back, as well as impaired bladder and bowel control. Wiemer filed this action alleging Hoosier Heights was negligent in its operations.

II. LEGAL STANDARD

The purpose of summary judgment is to “pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.” Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986). Federal Rule of Civil Procedure 56 provides that summary judgment is appropriate if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Hemsworth v. Quotesmith.Com, Inc., 476 F.3d 487, 489-90 (7th Cir. 2007). In ruling on a motion for summary judgment, the court reviews “the record in the light most favorable to the nonmoving party and draw[s] all reasonable [*7] inferences in that party’s favor.” Zerante v. DeLuca, 555 F.3d 582, 584 (7th Cir. 2009) (citation omitted). However, “[a] party who bears the burden of proof on a particular issue may not rest on its pleadings, but must affirmatively demonstrate, by specific factual allegations, that there is a genuine issue of material fact that requires trial.” Hemsworth, 476 F.3d at 490 (citation omitted). “In much the same way that a court is not required to scour the record in search of evidence to defeat the motion for summary judgment, nor is it permitted to conduct a paper trial on the merits of a claim.” Ritchie v. Glidden Co., 242 F.3d 713, 723 (7th Cir. 2001) (citation and internal quotations omitted). “[N]either the mere existence of some alleged factual dispute between the parties . . . nor the existence of some metaphysical doubt as to the material facts . . . is sufficient to defeat a motion for summary judgment.” Chiaramonte v. Fashion Bed Grp., Inc., 129 F.3d 391, 395 (7th Cir. 1997) (citations and internal quotations omitted). “It is equally well settled, however, that where no factual disputes are present or where the undisputed facts demonstrate that one party is entitled to judgment as a matter of law, summary judgment in favor of that party is entirely appropriate. Collins v. American Optometric Ass’n, 693 F.2d 636, 639 (7th Cir. 1982).

III. DISCUSSION

Hoosier Heights contends that Wiemer’s signing of the Waiver, which contained an explicit reference waiving liability [*8] for Hoosier Heights’ own negligence, absolves it of any liability and Wiemer expressly acknowledged that falling was a risk inherent in indoor rock climbing. Wiemer responds with two arguments in the alternative. First, he argues that the Waiver misidentifies the released party as “Hoosier Heights Indoor Rock Climbing Facility” because the Defendant’s name, as alleged in the Complaint and as evidenced by the Indiana Secretary of State Certificate of Assumed Business Name, is “Hoosier Heights Indoor Climbing Facility.” (Filing No. 67-4.) Second, Wiemer argues that Hoosier Heights negligence in the hiring and training of Mellencamp, was not an included “inherent risk” and this significantly contributed to his fall and injury.

A. Hoosier Heights’ Business Name

The waiver signed by Wiemer incorrectly lists the business name as ‘Hoosier Heights Indoor Rock Climbing Facility L.L.C.’ (Filing No. 30-1 at 1). Hoosier Heights acknowledges that its official name is Hoosier Heights Indoor Climbing Facility LLC and that the word “Rock” does not appear in its corporate filings with the Indiana Secretary of State although it appears on the Waiver at issue. Wiemer contends that a genuine issue of material [*9] fact exists regarding the validity of the Waiver, because the Waiver that he signed failed to name the correct entity and this inaccuracy creates ambiguity as to who Wiemer contracted with.

The Court is not persuaded by Wiemer’s argument. “Release documents shall be interpreted in the same manner as any other contract document, with the intention of the parties regarding the purpose of the document governing.” Huffman v. Monroe County Community School Corp., 588 N.E.2d 1264, 1267 (Ind. 1992). “The meaning of a contract is to be determined from an examination of all of its provisions, not from a consideration of individual words, phrases, or even paragraphs read alone.” Huffman, 588 N.E.2d at 1267. In addition, when a contract is unambiguous, Indiana courts look to the four corners of the document to determine the intentions of the parties. Evan v. Poe & Associates, Inc., 873 N.E.2d 92, 98 (Ind. Ct. App. 2007). This analysis of contract interpretation is a question of law. Evans v. Med. & Prof’l Collection Servs., Inc., 741 N.E.2d 795, 797 (Ind. Ct. App. 2001).

In Evans, the Indiana Court of Appeals held that a contract was unambiguous that misidentified a business name in the agreement but included the relevant address as that of the business. Evans, 741 N.E.2d at 798. The Evans court found that the plaintiff could not recover payment from the owner, “Evans Ford,” in his personal capacity, even though that was the name indicated in the contract and the actual business [*10] was organized as a corporation under the name of “Evans Lincoln Mercury Ford, Inc.” Id. at 796-98. The court did not resort to extrinsic evidence because the contract unambiguously identified the parties despite the misidentification. See id. at 798.

In this case, the Waiver is unambiguous as to identifying the parties to the agreement. Although the language of the Release and Assumption of Risk paragraph identifies “Hoosier Heights Indoor Rock Climbing Facility,” the document’s letterhead at the top displays “Hoosier Heights Indoor Climbing,” and includes the relevant business address of Hoosier Heights where Wiemer visited. Under these circumstances, the misidentification of Hoosier Heights does not operate to void the Waiver. Because the Waiver is unambiguous, the Court need not examine extrinsic evidence to determine the proper parties to the Waiver. Accordingly, summary judgment is denied on this basis.

B. Negligent Training

Hoosier Heights contends that summary judgment is appropriate because the Waiver’s explicit references to the “inherent risks” of rock climbing creates a binding exculpatory clause which releases Hoosier Heights from liability. Wiemer argues that a genuine issue of material fact exists [*11] regarding whether improper instruction and inadequate training, is an “inherent risk” of indoor rock climbing.

Under Indiana law, waivers containing exculpatory clauses absolving parties of liability for their own negligence must be specific and explicitly refer to waiving that party’s negligence. Anderson v. Four Seasons Equestrian Center, 852 N.E.2d 576, 584 (Ind. Ct. App. 2006). Nevertheless, “an exculpatory clause’s lack of a specific reference to the negligence of a defendant will not always preclude the defendant from being released from liability–such as when a plaintiff has incurred damages that are inherent in the nature of the activity.” Id. (citing Marsh v. Dixon, 707 N.E.2d 998, 1000 (Ind. Ct. App. 1999)).

Wiemer contends that his fall was due to Mellencamp’s improper training and instruction and this was not a risk that he agreed to assume (Filing No. 67 at 10). Further, he argues that improper training and instruction are not risks that are inherent in the nature of rock climbing. Id. Hoosier Heights responds that falls, as indicated by the Waiver, are a specific risk inherent in the nature of rock climbing and that Wiemer specifically waived any claims to injuries from falls by signing the Waiver (Filing No. 68 at 14). Hoosier Heights also contends that Wiemer waived any claims for improper training and instruction [*12] by its’ employees as the Waiver contains an explicit release of Hoosier Heights’ employees for any negligence. Id. at 12.

Hoosier Heights acknowledges that negligence is generally a fact-intensive question; however, it responds that it is entitled to summary judgment because Wiemer waived any claims for liability on the basis of negligence. Id. at 11. Hoosier Heights points the Court to Anderson v. Four Seasons Equestrian Center. In Anderson, the Indiana Court of Appeals held that the defendant, an equine center, was entitled to summary judgment even though the waiver at issue did not contain a specific and explicit release of the equine center due to its own negligence because the plaintiff’s injury of falling while mounting her horse was a risk inherent in the nature of the activity of horse riding. Anderson, 852 N.E.2d at 581. The plaintiff argued that her injury was due to the equine center’s negligence in caring for, conditioning, and training her horse. The court found that the plaintiff’s injury and resulting damages, including her characterization of the cause of those damages (i.e. conditioning and training of her horse), were risks that were inherent in the nature of horse riding and were exactly those for [*13] which she granted the equine center a release of liability by signing the waiver. Id. at 585.

In the present case, Wiemer signed a specific and explicit Waiver, which released Hoosier Heights from liability due to its own negligence. The Waiver explained that “rock climbing activity” at Hoosier Heights included, among other things,

…team building, fitness training regimens and equipment purchased or rented at Hoosier Heights[,]…injuries resulting from falls, equipment failures, entanglements, falling or dropped items, or the negligence of other climbers, participants, belayers, spotters, employees, or other users of the facility…. I understand that the above list is not inclusive of all possible risks associated with rock climbing.

(Filing No. 30-6 at 1). In addition, a very similarly worded reference to liability from their own negligence is contained in the second paragraph of the ‘Release and Assumption of Risk’ section which states, “It is the intention of the undersigned individually to exempt and relieve Hoosier Heights and its employees, … from liability for any personal injury, property damage, or wrongful death caused by negligence.” (Filing No. 30-1 at 1.) The direct mentions [*14] of Hoosier Heights’ own negligence adheres to the holding set in Powell that an exculpatory clause needs to be specific and explicit in referencing an absolving party’s liability from negligence.

Similar to the result in Anderson, by signing the Waiver, Wiemer released Hoosier Heights from any liability resulting from its own negligence, including improper training and instruction. Further, Wiemer’s injury from falling was a risk that was inherent in the activity of rock climbing and explicitly noted in the Waiver. Accordingly, summary judgment is appropriate.

IV. CONCLUSION

For the reasons stated above, the Court determines that, based on the undisputed material facts, Hoosier Heights is entitled to summary judgment as a matter of law. Hoosier Heights’ Motion for Summary Judgment (Filing No. 29) is GRANTED, and Wiemer’s Complaint is DISMISSED. Final Judgment will issue under a separate order.

SO ORDERED.

Date: 9/15/2017

/s/ Tanya Walton Pratt

TANYA WALTON PRATT, JUDGE

United States District Court

Southern District of Indiana


Kelly, v. United States of America, 2014 U.S. Dist. LEXIS 135289

Kelly, v. United States of America, 2014 U.S. Dist. LEXIS 135289

Morgan Kelly, Pamela Kelly, and Terry Kelly, Plaintiffs, v. United States of America, Defendant.

NO. 7:10-CV-172-FL

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA, SOUTHERN DIVISION

2014 U.S. Dist. LEXIS 135289

September 25, 2014, Decided

September 25, 2014, Filed

PRIOR HISTORY: Kelly v. United States, 809 F. Supp. 2d 429, 2011 U.S. Dist. LEXIS 89741 (E.D.N.C., 2011)

CORE TERMS: orientation, training, summary judgment, public interest, guardian, non-commercial, attend, cadet, attendance, signature, daughter’s, public policy, enforceable, genuine, waive, obstacle, quasi-estoppel, participating, recreational, undersigned, pre-injury, parental, affirmative defense, genuine issue, transportation, municipalities, educational, unambiguous, discovery, workshop

COUNSEL: [*1] For Morgan Kelly, Pamela Kelly, Terry Kelly, Plaintiffs: Steven Michael Stancliff, LEAD ATTORNEY, James L. Chapman , IV, Crenshaw, Ware and Martin, P.L.C., Norfolk, VA.

For United States of America, Defendant: Matthew Lee Fesak, R. A. Renfer , Jr., LEAD ATTORNEYS, U.S. Attorney’s Office, Raleigh, NC.

JUDGES: LOUISE W. FLANAGAN, United States District Judge.

OPINION BY: LOUISE W. FLANAGAN

OPINION

ORDER

This matter comes before the court on defendant’s motion for summary judgment pursuant to Federal Rule of Civil Procedure 56. (DE 93). This matter has been fully briefed, and the issues raised are ripe for review. For the following reasons, the court grants defendant’s motion.

STATEMENT OF THE CASE

The court refers to and incorporates the case history provided in previous orders, including its recent order on defendant’s motion to dismiss plaintiffs’ claims for gross negligence. Kelly v. United States, No. 7:10-CV-172, 2014 U.S. Dist. LEXIS 114376, 2014 WL 4098943 (E.D.N.C. Aug. 18, 2014) (“August 2014 Order”). Pertinent to the instant motion, plaintiffs commenced this action on September 2, 2010, pursuant to the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 2671, et seq., seeking damages in excess of ten million dollars ($10,000,000.00) for injuries allegedly suffered by plaintiff Morgan Kelly, daughter of plaintiffs Terry and Pamela Kelly. The [*2] court previously issued an order August 11, 2011, granting in part and denying in part plaintiffs’ motion to strike, in particular allowing defendant to raise the affirmative defense that plaintiff Pamela Kelly had waived plaintiffs’ claims. Kelly v. United States, 809 F. Supp. 2d 429, 437-38 (E.D.N.C. 2011) (“August 2011 Order”).

On November 25, 2013, defendant filed the instant motion for summary judgment, which also included the motion to dismiss plaintiffs’ gross negligence claim. Plaintiffs responded in opposition on February 27, 2014, and defendant replied on March 13, 2014.

Plaintiffs’ memorandum in opposition included a motion pursuant to Federal Rule of Civil Procedure 56(d) for additional discovery regarding the use, allocation and disposition of monies received from Navy Junior Reserve Officer Training Corps (“NJROTC”) cadets in exchange for the cadets’ attendance in the July 2007 orientation visit at issue in this case. The court granted plaintiff’s motion on March 31, 2014, and subsequently issued an order on scheduling directing the parties to complete the additional discovery by May 30, 2014. Plaintiffs were given until June 13, 2014, to file a supplemental brief in opposition to the government’s motion. However, the deadline passed without such brief being filed.

On August [*3] 18, 2014, the court granted defendant’s motion to dismiss. The order noted that it did not address the motion for summary judgment on plaintiffs’ remaining claims. August 2014 Order, 2014 U.S. Dist. LEXIS 114376, 2014 WL 4098943, at *1, n. 1. This motion comes now before the court.

STATEMENT OF FACTS

The facts, viewed in the light most favorable to the nonmoving party, may be summarized as follows:

In July 2007, plaintiff Morgan Kelly, then fifteen (15) years of age, was a cadet in the NJROTC program at her high school. Plaintiff Morgan Kelly’s twin sister, Magan Kelly, also was a NJROTC cadet. The NJROTC program included an orientation visit to United States Marine Corps Base Camp Lejeune (“Camp Lejeune”).

Prior to the orientation visit, plaintiffs received a “Waiver of Liability and Assumption of Risk Agreement.” (“Liability Waiver”) (DE 94-3). The Liability Waiver included the following language:

In consideration of the privilege of participating in an organized event in a training area at Camp Lejeune, North Carolina, and further recognizing the voluntary nature of my participation in this event, I, the undersigned person, intending to be legally bound, hereby promise to waive for myself, my guardians, heirs, executor, [*4] administrators, legal representatives and any other persons on my behalf, any and all rights and claims for damages, demands, and any other actions whatsoever, including those attributable to simple negligence, which I may have against any of the following persons or entities: the United States of America . . . which said injuries arise out of my participation in the activities comprising the aforesaid event; as well as any use by me of any Marine Corps Base, Camp Lejeune, North Carolina, or government equipment or facilities in conjunction with and furtherance of such participation by me. I FURTHER VERIFY THAT I HAVE FULL KNOWLEDGE OF THE RISKS ASSOCIATED WITH ATTENDING THIS EVENT. I EXPRESSLY, KNOWINGLY, AND VOLUNTARILY ASSUME THE RISKS INVOLVED IN THE PLANNED ACTIVITIES INCLUDING TRANSPORTATION TO AND FROM THE EVENT, AND AGREE TO HOLD THE UNITED STATES HARMLESS FOR ANY RESULTING INJURY. I understand that this assumption of risk agreement shall remain in effect until notice of cancellation is received by the Commanding General, Marine Corps Base, Camp Lejeune, North Carolina. I understand that, should I decline to execute this agreement, I will not be permitted to attend the organized [*5] event.

(DE 94-3 at 1). (See attached as Addendum A hereto.)

Below this language, the form provided lines for the signature and printed name of the minor participant, along with lines for the signature of a parent or guardian, “on behalf of” the minor. Morgan and Magan’s mother, plaintiff Pamela Kelly, signed the form, believing that she was signing it for Magan. She left the blanks which required Magan’s name for Magan to complete. However, plaintiff Pamela Kelly did not sign a form for her other daughter because plaintiff Morgan Kelly originally planned to attend a sailing trip in Florida at the time of the orientation.

Subsequently, plaintiff Morgan Kelly’s sailing trip was cancelled, and she joined the orientation visit. She signed and printed her name onto the Liability Waiver in the spaces that her mother had left for Magan Kelly. The Liability Waiver, in its unredacted format, includes Magan Kelly’s social security number, but it is unclear how this number appeared on the form or who wrote it. The Liability Waiver does not otherwise mention Magan Kelly. It is unclear whether a separate form was submitted for Magan Kelly or whether she attended the orientation.

While planning the [*6] orientation visit, Operations Specialist Frank Acevedo (“Acevedo”) sent a packet of information to plaintiff Morgan Kelly’s high school, including a list of training activities and a brief description of an obstacle course challenge known as the “Confidence Course.” However, neither plaintiff Pamela Kelly nor plaintiff Terry Kelly received a copy of this information packet prior to the orientation visit, and neither parent otherwise communicated with Acevedo or any other government representative from Camp Lejeune before the orientation visit.

The orientation visit began on July 23, 2007. During the visit, the cadets were allowed to use government facilities at Camp Lejeune at no expense, and were not charged for the instruction they received. Cadets were responsible only for paying for meals eaten at a Camp Lejeune dining facility at a Discount Meal Rate, and for personal purchases made at a Post Exchange.1

1 Although plaintiffs’ memorandum in opposition questioned defendant’s characterization of how the money received from students was used, plaintiffs failed to renew any challenge or provide any support for such a challenge after the court granted their request for additional discovery [*7] on the matter. As such, the court finds that plaintiffs do not object to the government’s description of the collection and use of money from the NJROTC cadets.

On July 27, 2007, plaintiff Morgan Kelly, along with the other cadets, completed two obstacle courses prior to undertaking the series of obstacles known as the “Confidence Course.” Before the cadets completed the Confidence Course, two Marine instructors from the School of Infantry provided preliminary instructions, the content of which is disputed.2 The final obstacle of the Confidence Course, called the “Slide for Life,” was a climbing apparatus. Defendant knew that the Slide for Life posed a substantial risk of death or serious bodily injury if it were not successfully negotiated. However, defendant did not assess plaintiff Morgan Kelly’s physical capabilities before she climbed the Slide for Life. Nor did defendant provide any safety harnesses, restraints, or other protection systems that would prevent her from falling. While attempting to climb the Slide for Life, plaintiff Morgan Kelly fell and suffered injuries.

2 Defendant asserts that the instructors “provided a safety brief and a demonstration of how to navigate each obstacle,” [*8] (Def.’s Mem. in Supp. at 1-2) (DE 94), while plaintiffs assert that Marine instructors provided only a “walk-through” of the course, without safety warnings. (Pls.’s Mem. in Opp. at 4) (DE 101).

COURT’S DISCUSSION

A. Standard of Review 3

3 Plaintiffs’ arguments in opposition to the motion for summary judgment raise several issues addressed by the court in its August 2011 Order on motion to strike. The court considers anew plaintiffs’ arguments under the standard applicable to the instant motion for summary judgment.

Summary judgment is appropriate where an examination of the pleadings, affidavits, and other discovery materials properly before the court demonstrates “that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986) (holding that a factual dispute is “material” only if it might affect the outcome of the suit and “genuine” only if there is sufficient evidence for a reasonable jury to find for the non-moving party).

The party seeking summary judgment “bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate [*9] the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). Once the moving party has met its burden, the non-moving party must then “set forth specific facts showing that there is a genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986). There is no issue for trial unless there is sufficient evidence favoring the non-moving party for a jury to return a verdict for that party. Anderson, 477 U.S. at 250. In making this determination, the court must view the inferences drawn from the underlying facts in the light most favorable to the nonmoving party. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S. Ct. 993, 8 L. Ed. 2d 176 (1962).

B. Analysis

Defendant’s motion for summary judgment rests on its argument that the Liability Waiver bars plaintiffs’ claims. As detailed in the court’s August 2011 Order on plaintiffs’ motion to strike, liability waivers are generally enforceable under North Carolina law.4 See Kelly v. United States, 809 F. Supp. 2d 429, 433 (E.D.N.C. 2011) (citing Hall v. Sinclair Refining Co., 242 N.C. 707, 709, 89 S.E.2d 396 (1955)). Moreover, because plaintiff Morgan Kelly is a minor and has disaffirmed her waiver by filing complaint, her own waiver is unenforceable under North Carolina law. See id. at 434 (citing Baker v. Adidas Am., Inc., 335 F. App’x 356, 359 (4th Cir. 2009); Creech v. Melnik, 147 N.C. App. 471, 475, 556 S.E.2d 587 (2001); Freeman v. Bridger, 49 N.C. 1 (1856)).

4 In actions under the FTCA, “federal courts apply the substantive law of the state in which the act or omission giving rise to the action occurred.” Myrick v. United States, 723 F.2d 1158, 1159 (4th Cir. 1983). Because the alleged act or omission giving rise to the action occurred in North Carolina, [*10] North Carolina law governs the nature and extent of the government’s liability for plaintiffs’ injuries.

It does not appear that North Carolina courts have ruled on whether a liability waiver signed by a parent on behalf of a minor child is enforceable, yet numerous courts in other jurisdictions have upheld pre-injury liability waivers signed by parents on behalf of minors in the context of litigation filed against schools, municipalities, and clubs providing activities for children. See, e.g., Gonzalez v. City of Coral Gables, 871 So. 2d 1067, 1067-68 (Fla. Dist. Ct. App. 2004); Sharon v. City of Newton, 437 Mass. 99, 106-12, 769 N.E.2d 738 (2002); Zivich v. Mentor Soccer Club, Inc., 82 Ohio St. 3d 367, 374, 1998 Ohio 389, 696 N.E.2d 201 (1998); Hohe v. San Diego Unified Sch. Dist., 224 Cal. App. 3d 1559, 1564-65, 274 Cal. Rptr. 647 (1990). In its August 2011 Order the court held that North Carolina would similarly uphold a pre-injury waiver executed by a parent on behalf of a minor child in the context of the facts alleged here. Kelly, 809 F. Supp. 2d at 437. Now on plaintiffs’ motion for summary judgment, the court continues to find that these cases are analogous to the circumstances here, where the facilities and instruction of the NJROTC program were provided at no expense and students were charged only for personal purchases from the Post Exchange and for meals at discount rate.

Plaintiffs nevertheless argue that the Liability Waiver is contrary to public policy. For support, they point to the Fourth Circuit’s recent decision in McMurray v. United States, 551 F. App’x 651 (4th Cir. 2014). Although contracts [*11] seeking to release a party from liability for negligence generally are enforceable in North Carolina, the public policy exception prohibits a person from contracting to protect himself from “liability for negligence in the performance of a duty of public service, or where a public duty is owed, or public interest is involved, or where public interest requires the performance of a private duty.” McMurray, 551 F. App’x at 653-54 (quoting Hall, 242 N.C. at 710).5

5 Exculpatory clauses or contracts are also not enforceable when the provisions violate a statute, or are gained through inequality of bargaining power. McMurray, 551 F. App’x at 653; Hall, 242 N.C. at 709-10. The August 2011 Order rejected plaintiffs’ arguments that these two factors applied to the Liability Waiver. Kelly, 809 F. Supp. 2d at 434, n. 6. Plaintiffs have not raised those arguments again here.

In McMurray, the plaintiff, a high school guidance counselor, completed a release of liability form in order to attend a workshop for educational professionals hosted by the Marine Corps at its facility on Parris Island, South Carolina. Id. at 652. The document released the government from any injuries arising out of participation in the workshop, including “riding in government-provided transportation (to include transportation to and from the Educator’s Workshop.)” Id. The [*12] plaintiff subsequently was injured when the Marine recruiter who drove her to the workshop ran a red light and collided with another car. Id. Noting the numerous statutes, regulations and cases governing public roads in North Carolina, the court determined that the state had a “strong public-safety interest in careful driving and the observance of all traffic-related rules and regulations.” Id. at 654. The court concluded that allowing the government to be released from the duty to use reasonable care when driving would violate that policy, and accordingly held the release unenforceable under North Carolina law. Id. at 656.

Plaintiffs argue that the Liability Waiver is contrary to an “equally compelling interest,” in this case being, “the obligation of the government to exercise reasonable care for the safety of minor school children participating in a congressionally-sanctioned (and funded) JROTC program.” (Pls.’s Mem. in Opp. at 20). Protecting the safety of minor school children in programs like JROTC (and NJROTC) is undoubtedly a matter of public interest. However, this case also involves a countervailing public interest in facilitating JROTC’s provision of non-commercial services to children on a [*13] voluntary basis without the risks and overwhelming costs of litigation.

The public’s interest in the benefits provided by JROTC programs is embodied in federal statutes and regulations governing these programs’ purpose and administration, which set forth such objectives as instilling in students “the values of citizenship, service to the United States, and personal responsibility and a sense of accomplishment,” 10 U.S.C. § 2031(a)(2), along with imparting other benefits such as good communication skills, an appreciation of physical fitness, and a knowledge of basic military skills. 32 C.F.R. § 542.4. Moreover, North Carolina has demonstrated a public interest in the non-commercial provision of educational or recreational activities, by enacting statutes such as the recreational use statute, N.C. Gen. Stat. § 38A-4, which encourages landowners to allow public use of their land without charge for educational or recreational purposes by limiting their duty of care to that of refraining from willful or wanton infliction of injury.

The cases from other jurisdictions which have upheld liability waivers such as the one at issue here have concluded that the public is best served when risks or costs of litigation regarding such programs are minimized. [*14] See Zivich, 82 Ohio St. 3d at 372 (“[W]e conclude that although [plaintiff], like many children before him, gave up his right to sue for the negligent acts of others, the public as a whole received the benefit of these exculpatory agreements. Because of this agreement, the Club was able to offer affordable recreation and to continue to do so without the risks and overwhelming costs of litigation.”); Hohe, 224 Cal. App. 3d at 1564 (“The public as a whole receives the benefit of such waivers so that groups such as Boy and Girl Scouts, Little League, and parent-teacher associations are able to continue without the risks and sometimes overwhelming costs of litigation. Thousands of children benefit from the availability of recreational and sports activities.”).

Courts have also found that such releases serve the public interest by respecting the realm of parental authority to weigh the risks and costs of physical injury to their children against the benefits of the child’s participation in an activity. Sharon, 437 Mass. at 109; Zivich, 82 Ohio St. 3d at 374. Likewise, North Carolina has recognized a public interest in respecting parents’ authority over certain life decisions for their children. See Doe v. Holt, 332 N.C. 90, 97, 418 S.E.2d 511 (1992) (“[R]easonable parental decisions concerning children should [not] be reviewed in the courts of this state. Such decisions [*15] make up the essence of parental discretion, discretion which allows parents to shape the views, beliefs and values their children carry with them into adulthood. These decisions are for the parents to make, and will be protected as such.”).

The court remains persuaded by the analysis of those courts upholding liability waivers signed by parents in the context of litigation against schools, municipalities and clubs, which either implicitly or explicitly found the risk presented by such waivers to be outweighed by interests in providing non-commercial activities and respecting parental authority. See Sharon, 437 Mass. at 105 (“In weighing and analyzing [plaintiff’s] public policy arguments, we must also consider other important public policies of the Commonwealth implicated in the resolution of this issue . . . .); Zivich, 82 Ohio St. 3d at 370-71 (“[T]he proper focus is not whether the release violates public policy but rather that public policy itself justifies the enforcement of this agreement.”).

Plaintiffs’ reliance on McMurray is misplaced. The public interest considered in that case, careful driving and observance of traffic rules and regulations, is not at issue here. Nor did that case address whether any contrary public interest was at [*16] stake which might justify the waiver.

Plaintiffs argue that other cases upholding liability waivers signed by parents on behalf of their children are not applicable in this case, because the claims here are directed against the United States and because the JROTC is not a community-based or volunteer-run activity. They note that the officials conducting the orientation visit acted as paid servants of the United States. They argue that the economic considerations at issue in cases from other jurisdictions are not applicable here, where the United States government is self-insured and has waived its immunity. However, none of these arguments are persuasive.

First, neither the defendant’s status as a government body, nor the volunteer status of a program’s personnel, are controlling factors in the analysis. In Sharon, the court upheld a liability waiver in the context of a suit against the city government for a cheerleading program coached by a public school employee, not a volunteer. Sharon, 437 Mass. at 100. Furthermore, the JROTC program is community-based, in that schools must apply for a unit, 10 U.S.C. § 2031(a)(1), and may decide to eliminate the program from their curriculum. See Esquivel v. San Francisco Unified Sch. Dist., 630 F. Supp. 2d 1055 (N.D. Cal. 2008). In this way, JROTC programs are run in cooperation [*17] with the community, and rely on the community for support. In turn, JROTC programs promote the community welfare by instilling the values and benefits noted above in the community’s children. Finally, the mere fact that the United States has waived its sovereign immunity through the FTCA does not mean that it should be denied the use of a waiver that other non-governmental volunteer or non-profit organizations could employ. On the contrary, the FTCA only makes the United States liable “in the same manner and to the same extent as a private individual under like circumstances.” 28 U.S.C. § 2674.

It is clear that the July 2007 NJROTC orientation program was offered with a noncommercial purpose, and that students attended voluntarily. Because a liability waiver signed by a parent would be enforceable by a private person offering a non-commercial, voluntary activity of this nature, the United States should also be able to use a parent-signed liability waiver for the noncommercial, voluntary NJROTC orientation visit. See Sharon, 437 Mass. at 111-12 (holding that Massachusetts Tort Claims Act (“MTCA”) would not prevent municipalities from using liability waivers as a precondition for participation in voluntary activities that they [*18] sponsored, because the MTCA gave such municipalities the same defenses as private parties in tort claims).

Aside from their public policy argument, plaintiffs contend that advance court approval is necessary for a parent to extinguish a minor’s personal injury claim. However, their argument is little more than an abbreviated version of their previous argument supporting their motion to strike. The cases they cite do not address the specific circumstances here, of a pre-injury liability waiver in the context of a non-commercial activity provided to children on a voluntary basis. For instance, plaintiffs quote from Justice White’s concurring opinion in International Union v. Johnson Controls, Inc., 499 U.S. 187, 111 S. Ct. 1196, 113 L. Ed. 2d 158 (1991), which recognized that “the general rule is that parents cannot waive causes of action on behalf of their children . . . .” (Pls’. Mem. in Opp. at 21) (quoting Int’l Union, 499 U.S. at 213-14.). The context of this quote was the concurring opinion’s speculation as to a potential justification for an employer’s fetal-protection policy, as a means of avoiding claims brought by children for injuries caused by torts committed prior to conception. Int’l Union, 499 U.S. at 212-14. This is far different than a pre-injury waiver for a non-commercial activity provided to children on a voluntary basis, where [*19] the activity does not generate its own profits and the benefits of the waiver extend to the entire community. Moreover, as the quote itself shows, the rule against parental waivers is only “general.” Id. at 213.

Plaintiffs also cite to the North Carolina cases of Sell v. Hotchkiss, 264 N.C. 185, 191, 141 S.E.2d 259 (N.C. 1965) and Creech, 147 N.C. App. at 475, neither of which involved non-commercial, voluntary activities like the NJROTC program. Moreover, both of these cases involved post-injury liability waivers. Concerns underlying courts’ reluctance to allow parents to dispose of childrens’ existing claims, such as the concern that the hardships posed by caring for an injured child will lead the parents to act for their own financial interest, or that the parents will be more vulnerable to fraud or coercion in such circumstances, are mitigated in the pre-injury release context. See Zivich, 82 Ohio St. 3d at 373. The cases from other jurisdictions noted above, where liability waivers signed by parents were upheld, did not require prior court approval for those waivers. E.g. Gonzalez, 871 So. 2d at 1067-68; Sharon, 437 Mass. at 106-12; Zivich, 82 Ohio St. 3d at 374; Hohe, 224 Cal. App. 3d at 1564-65. Further, as a practical matter, requiring prior court approval would seriously encumber the process for participation in non-commercial, educational activities such as the NJROTC program. Such prior approval is not required.

Having [*20] affirmed that a liability waiver is not unenforceable in the abstract, analysis turns to the particular agreement itself. First, plaintiffs argue that this Liability Waiver should not be enforced because the parties did not reach a “meeting of the minds,” alleging that plaintiff Pamela Kelly believed she was signing the form for plaintiff Morgan Kelly’s twin sister, Magan. A release from liability is subject to avoidance by showing that its execution resulted from mutual mistake. George v. McClure, 266 F. Supp. 2d 413, 418 (M.D.N.C. 2001); see also Marriott Fin. Servs., Inc. v. Capitol Funds, Inc., 288 N.C. 122, 136, 217 S.E.2d 551 (1975). However, a unilateral mistake, unaccompanied by fraud, imposition, undue influence or like circumstances is insufficient to avoid a contract. Marriott Fin. Servs., 288 N.C. at 136. Plaintiffs do not argue that defendant mistakenly believed that the Liability Waiver, to which plaintiff Morgan Kelly admittedly signed her own name, was intended to cover Magan Kelly. Nor do they argue that the government acted in a fraudulent manner or that other like circumstances were present. They have shown no more than a unilateral mistake.

In addition, plaintiff Pamela Kelly cannot avoid the contract because she subsequently allowed plaintiff Morgan Kelly to attend the orientation session, knowing that a liability waiver was required. See (DE 94-3 [*21] at 1) (noting that those who failed to sign the waiver would “not be permitted to attend the organized event”). North Carolina courts have held that, when a release is originally invalid or voidable, it may be ratified and affirmed by subsequent acts accepting the benefits. Presnell v. Liner, 218 N.C. 152, 154, 10 S.E.2d 639 (1940); see also VF Jeanswear Ltd. P’ship v. Molina, 320 F. Supp. 2d 412, 422 (M.D.N.C. 2004). Similarly, under the North Carolina theory of quasi-estoppel, also known as “estoppel by benefit,” a party who “accepts a transaction or instrument and then accepts benefits under it may be estopped to take a later position inconsistent with the prior acceptance of that same transaction or instrument.” Whitacre P’ship v. Biosignia, Inc., 358 N.C. 1, 18, 591 S.E.2d 870 (2004). The doctrine is grounded “upon a party’s acquiescence or acceptance of payment or benefits, by virtue of which that party is thereafter prevented from maintaining a position inconsistent with those acts.” Godley v. Pitt Cnty., 306 N.C. 357, 361-62, 293 S.E.2d 167 (1982).6

6 The court notes that defendant did not raise the defense of estoppel in its answer. Generally, estoppel is an affirmative defense that should be raised in the pleadings under Federal Rule of Civil Procedure 8(c). Fed. R. Civ. P. 8(c); Simmons v. Justice, 196 F.R.D. 296, 298 (W.D.N.C. 2000). However, “[I]f an affirmative defense is raised in a manner that does not result in unfair surprise to the opposing party, failure to comply with Rule 8(c) will not result in waiver of the defense.” Simmons, 196 F.R.D. at 298 (quoting United States v. Cook, No. 94-1938, 1995 U.S. App. LEXIS 24342, 1995 WL 508888 (4th Cir. Aug. 29, 1995)). The requirement of pleading [*22] an affirmative defense may be waived if evidence of the defense is admitted into the record without objection. Caterpillar Overseas, S.A. v. Marine Transp. Inc., 900 F.2d 714, 725, n. 7 (4th Cir. 1990). “Courts have been more lenient in the context of motions for summary judgment.” Grunley Walsh U.S., LLC v. Raap, No. 1:08-CV-446, 2009 U.S. Dist. LEXIS 38609, 2009 WL 1298244, at *5 (E.D. Va. May 6, 2009). The defense of quasi-estoppel was raised in defendant’s memorandum supporting summary judgment, and plaintiffs did not object to the defense in their memorandum in opposition. In this instance, no unfair surprise exists and defendant may assert this defense.

Zivich provides a helpful illustration of what constitutes “acceptance” of the benefits of a liability waiver in the context of non-commercial, voluntary recreational activities. Zivich, 82 Ohio St.3d at 375. There, the court held that a mother’s execution of a release would bar the claims of her husband for their son’s soccer practice injury. Id. The court noted that the father “was the parent who was at the practice field” on the evening of that the injury occurred. It held that his “conduct convey[ed] an intention to enjoy the benefits of his wife’s agreement and be bound by it.” Id.

Here, the benefits of the Liability Waiver for plaintiff Pamela Kelly consisted of her daughter’s participation in the NJROTC orientation program, [*23] with the attendant benefits of introducing her to the culture, skills, and values that the NJROTC seeks to impart. By accepting the benefit of her child’s attendance at the orientation session, knowing that a liability waiver was required for attendance, plaintiff Pamela Kelly cannot now disavow the effect of the instrument she signed that allowed her child to attend.

As an alternative ground for denying summary judgment, plaintiffs argue that the Liability Waiver cannot be enforced because the government did not identify the risks that the form covered. Plaintiffs Pamela and Terry Kelly both allege that they never received any information concerning the risks of injury associated with plaintiff Morgan Kelly’s use of the obstacle course. (P. Kelly Decl. ¶¶ 6-11; T. Kelly Decl. ¶¶ 6-11). Consequently, they state they anticipated that plaintiff Morgan Kelly would only be visiting Camp Lejeune to observe equipment and other military activities, and that she would only be performing the same activities that she had performed in the past, such as marching in formations, drills, and “ground-based physical fitness training.” (P. Kelly Decl., ¶ 10; T. Kelly Decl., ¶ 10.)

As a contract, the Liability [*24] Waiver is subject to the recognized rules of contract construction. Adder v. Holman & Moody, 288 N.C. 484, 492, 219 S.E.2d 190 (1975). “The heart of a contract is the intention of the parties,” which “must be determined from the language of the contract, the purposes of the contract, the subject matter and the situation of the parties at the time the contract is executed.” Id. Liability waivers are disfavored under North Carolina law, and strictly construed against the parties seeking to enforce them. Hall, 242 N.C. at 709. However, when the language is clear and unambiguous, construction of the agreement is a matter of law for the court, and the court cannot look beyond the terms of the contract to determine the parties’ intent. Root v. Allstate Ins. Co., 272 N.C. 580, 583, 158 S.E.2d 829 (1968).

In an analogous case, Waggoner v. Nags Head Water Sports, Inc., No. 97-1394, 1998 U.S. App. LEXIS 6792, 1998 WL 163811 (4th Cir. April 6, 1998), the plaintiff rented a jet ski from the defendant, signing a rental agreement in which she “assume[d] all risk of accident or damages to my person . . . which may be incurred from or be connected in any manner with my use, operation or rental of the craft checked above.” 1998 U.S. App. LEXIS 6792, [WL] at *1. Plaintiff alleged that she did not understand that the form allowed defendant to escape liability for negligence. Id. Nevertheless, the court held that the clear and unambiguous language of the clause would bar her claim. 1998 U.S. App. LEXIS 6792, [WL] at *3-4.

Here, the Liability Waiver states [*25] in clear and unambiguous language that it is made “[i]n consideration of the privilege of participating in an organized event in a training area at Camp Lejeune,” and that it serves to waive “any and all rights and claims . . . including those attributable to simple negligence . . . which said injuries arise out of my participation in the activities comprising the aforesaid event; as well as any use by me of any Marine Corps Base, Camp Lejeune, North Carolina, or government equipment or facilities in conjunction with and furtherance of such participation by me.” (DE 94-3).

As such, the waiver provides ample notice to plaintiffs of the potential for a wide range of activities at the event, not limited in any way to marching, drills, or “ground-based physical fitness training.” Plaintiffs do not allege that they were affirmatively misled as to the nature of the activities that would comprise the event, or that they were prevented from inquiring into the activities or the associated risks. They have not provided any reason for the court to look beyond the language clearly and unambiguously covering the circumstances of plaintiff Morgan Kelly’s injury. See Root, 272 N.C. at 583; Waggoner, 1998 U.S. App. LEXIS 6792, 1998 WL 163811 at *3-4; see also Kondrad v. Bismarck Park Dist., 2003 ND 4, 655 N.W. 2d 411, 413-14 (N.D. 2003) (Waiver language relinquishing [*26] all claims for injuries that would occur “on account of my participation of [sic] my child/ward in this program” exonerated park district from liability, even though child’s accident occurred during activity that was not “associated with the program;” language of waiver and release was “clear and unambiguous,” and “not limited only to injuries incurred while participating in activities associated with the program, but to all injuries incurred by the child on account of his participation in the program.”).

Plaintiffs also argue that summary judgment should be denied because plaintiff Morgan Kelly has disaffirmed it (by filing complaint) and because the Liability Waiver does not include express language waiving plaintiff Pamela Kelly’s claims on behalf of herself and her child. As noted above, the Liability Waiver refers to “my participation” in the “organized event” and states “I understand that, should I decline to execute this agreement, I will not be permitted to attend the organized event.” (DE 94-3, at 1). This issue, too, was addressed in the court’s order on plaintiffs’ motion to strike. Kelly, 809 F. Supp. 2d at 434-37. There, the court held that, despite plaintiff Morgan Kelly’s disaffirmation of the Liability [*27] Waiver, the document was nevertheless enforceable as signed by her parent. Id. Although the language of the Liability Waiver was written from plaintiff Morgan Kelly’s perspective, its plain language nevertheless stated that “I, the undersigned person, intending to be legally bound, hereby promise to waive for myself, my guardians, heirs, executor, administrators, legal representatives and any other persons on my behalf . . . .” Id. at 438, n. 8.

Plaintiffs cite cases from other jurisdictions enforcing liability waivers signed by parents in which the waiver was tailored from the perspective of the signing parent. Hamill v. Cheley Colo. Camps, Inc., 262 P. 3d 945, 948 (Colo. App. 2011) (“I, on behalf of myself and my child, hereby release . . .”); Sharon, 437 Mass. at 100-01 (“[I] the undersigned [father of] . . . a minor, do hereby consent to [her] participation in voluntary athletic programs and do forever RELEASE . . . all claims or right of action for damages which said minor has or hereafter may acquire.”). Yet plaintiffs have not cited any case holding that a form such as that used here, which expressly waives both the claims of the child and her guardians, and which is signed by one of those guardians, cannot be enforced against the guardian who signed it. The court again holds that the Liability [*28] Waiver is enforceable to bar the claims of both Morgan and Pamela Kelly.

The question remains whether the Liability Waiver is effective against the claims of plaintiff Terry Kelly, who did not sign the document, and denies ever seeing it prior to plaintiff Morgan Kelly’s orientation visit. (T. Kelly Decl. ¶ 14). Defendant nevertheless argues that plaintiff Terry Kelly’s claims should also be barred, asserting the doctrine of quasi-estoppel described above. As noted above, quasi-estoppel is applied when a party “accepts a transaction or instrument and then accepts benefits under it may be estopped to take a later position inconsistent with the prior acceptance of that same transaction or instrument.” Whitacre P’ship, 358 N.C. at 18. The doctrine faces problems in application to the Liability Waiver, however, where defendant has not directed the court to evidence that plaintiff Terry Kelly knew of the Liability Waiver or its terms.

However, it is not necessary to decide whether plaintiff Pamela Kelly’s signature could bind her husband under these circumstances, because defendant produced a document referred to as the “Naval Junior Reserve Officers Training Corps (NJROTC) Standard Release Form.” (DE 94-4) (“Release Form”) [*29] (See Attached as Addendum B hereto). Page 2 of the Release Form, dated July 13, 2007, provides the following:

I, Terry A Kelly, being the legal parent/guardian of Morgan Kelly, a member of the Naval Junior Reserve Officers Training Corps, in consideration of the continuance of his/her membership in the Naval Junior Reserve Officers Training Corps training, do hereby release from any and all claims, demands, actions, or causes of action, due to death, injury, or illness, the government of the United States and all its officers, representatives, and agents acting officially and also the local, regional, and national Navy Officials of the United States.

(DE 94-4 at 2).

In the paragraph quoted above, the names of plaintiffs Terry and Morgan Kelly are written by hand. Plaintiff Terry Kelly’s declaration provides that page 2 “appears to contains [sic] my handwriting, but I would have to see the original to be certain.” (T. Kelly Decl. at ¶ 16).

Plaintiffs Terry and Pamela Kelly have attempted to challenge the Release Form, stating that they “do not believe that Document No. 94-4 is a genuine document.” In particular, they note that the front page, referenced as page 2 (the certification is appended [*30] as the first page of this filing), is identified as standard form “CNET 5800-4 (Rev. 1-00)” while the final page of the document, which includes a privacy act notification under which plaintiff Pamela Kelly’s name is signed, is identified as “CNET – General 5800/4 (REV. 1-95).” (DE 94-4 at 3; T. Kelly Decl. at ¶ 16; P. Kelly Decl. at ¶ 16). Like her husband, plaintiff Pamela Kelly declares that the writing on page 3 “looks like my signature, but I would need to see the original to be certain.” (P. Kelly Decl. at ¶ 16). She states that she does “not know when Page 3 of 3 was signed or for what purpose.” (Id.).

On April 27, 2011, the court amended its case management order to permit plaintiffs

to have until May 1, 2011, at their option, to visually inspect any original release and/or waiver document or documents relied upon by defendant at defendant’s counsel’s office. This deadline is without prejudice to plaintiffs’ right to have such document or documents examined by experts at a later date, if they deem necessary.

(April 27, 2011, order, p.1, DE 19).

It appears plaintiffs reviewed the Liability Waiver at defendant’s counsel’s office, but not the Release Form. (T. Kelly Decl. at ¶ 15; [*31] P. Kelly Decl. at ¶ 15). No separate request to review was made.

Plaintiffs’ arguments are insufficient to create a genuine issue concerning the Release Form, which is accompanied by a Certificate of Authenticity executed by the Compliance Officer of plaintiff Morgan Kelly’s school district, and notarized by a notary public. (DE 94-4 at 1). “Unsupported speculation . . . is not sufficient to defeat a summary judgment motion.” Ash v. UPS, 800 F.2d 409, 411-12 (4th Cir. 1986)). Plaintiffs had opportunity to review the original Release Form, and to have it assessed by an expert if deemed necessary. An opponent of summary judgment “must produce more than frivolous assertions, unsupported statements, illusory issues and mere suspicions.” Fed. Deposit Ins. Corp. v. Rodenberg, 571 F. Supp. 455, 457 (D. Md. 1983); see also 10A Wright, Miller & Kane, Fed. Practice and Procedure: Civil 3d § 2727 at 510-12 (1998) (“Neither frivolous assertions nor mere suspicions will suffice to justify a denial of summary judgment.”). It is little more than speculation to argue that the Release Form is not genuine, based merely on minor distinctions in form designations between pages. Similarly, plaintiffs’ allegations that they would “have to see the original” to be sure of their signatures amount to nothing more than mere suspicions, [*32] and they had this opportunity. Furthermore, neither Terry nor Pamela Kelly expressly denies seeing or writing on the pages where their names appear. This cannot create a genuine issue for summary judgment.7

7 To the extent plaintiffs’ challenge is an attack on the document’s authentication under Federal Rules of Evidence 901 and 902, it still fails to create a genuine issue of material fact. A party may show the existence of a genuine dispute of material fact by objecting “that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence.” Fed. R. Civ. P. 56(c)(2). However, the Certificate of Authenticity signed by the school district’s Compliance Officer satisfies the court that this document could be made admissible in evidence at trial.

The document therefore shows plaintiff Terry Kelly’s acceptance of a transaction whereby his claims were released “in consideration of” plaintiff Morgan Kelly’s continued participation in NJROTC training activities. The Release Form refers to “any and all claims.” In Waggoner, the court held that “the term ‘all claims’ must doubtless include a claim for negligence.” Waggoner, 1998 U.S. App. LEXIS 6792, 1998 WL 163811, at *4. See also Young v. Prancing Horse, Inc., No. COA04-727, 2005 N.C. App. LEXIS 1108, 2005 WL 1331065, at *2 (N.C. App. June 7, 2005) (“[W]e cannot agree with plaintiff [*33] that the absence of the word ‘negligence’ makes the release inoperable to bar this claim . . . . With all due regard to the severity of the injuries suffered by plaintiff, they are of the type contemplated and intended by this release.”).

Even if the Release Form failed to refer to the orientation visit in sufficiently specific terms, quasi-estoppel must operate to bar plaintiff Terry Kelly’s claims, because the record shows that plaintiff Terry Kelly accepted the benefits of the Release Form as it applied to the orientation visit. By detailing the kind of activities that he “understood” and “anticipated” his child would be involved in when she arrived at the orientation visit, plaintiff Terry Kelly’s declaration discloses that he knew plaintiff Morgan Kelly would be visiting Camp Lejeune. (T. Kelly Decl. at ¶ 10). He also alleges that “[a] monetary payment was required as a condition of Morgan’s attendance at the orientation visit,” indicating that he consented to payment for the visit. Id. at ¶ 5. He does not allege any objection to his daughters’ attendance or participation. He does not allege that he was estranged from his family, or that he was kept unaware of the upcoming activity. [*34]

“[A] party will not be allowed to accept benefits which arise from certain terms of a contract and at the same time deny the effect of other terms of the same agreement.” Brooks v. Hackney, 329 N.C. 166, 173, 404 S.E.2d 854 (1991). In Brooks, the court determined that even though an agreement to convey real property was invalid because its terms were not sufficiently definite, the plaintiff was estopped from denying its validity because he had made regular payments on the agreement, and therefore that the defendants reasonably relied on the writing. Id. at 171-73.

The same principle operates here, where plaintiff Terry Kelly signed a Release Form surrendering claims related to his daughter’s participation in NJROTC training, then allowed his daughter to attend a NJROTC training orientation visit. On the evidence, there is no genuine issue that plaintiff Terry Kelly accepted that plaintiff Morgan Kelly’s “membership in the Naval Junior Reserve Officers Training Corps training,” included the orientation visit. In consideration of this training, including the orientation visit, he released “claims, demands, actions, or causes of action, due to . . . injury.” Defendant reasonably relied on plaintiff Terry Kelly’s writing, in addition to his acquiescence to his [*35] daughter’s attendance at the orientation visit. Plaintiff Terry Kelly cannot be allowed to accept the benefits of the Release Form through his daughter’s attendance, while at the same time denying the release that was required as a condition of that attendance.

With all of plaintiffs’ claims disposed by waiver and release, summary judgment must be granted.

CONCLUSION

For the reasons set forth above, the court GRANTS defendant’s motion for summary judgment. (DE 93). The clerk is DIRECTED to close this case.

SO ORDERED, this the 25th day of September, 2014.

/s/ Louise W. Flanagan

LOUISE W. FLANAGAN

United States District Judge

ADDENDUM A

Waiver of liability and Assumption of Risk Agreement United States Marine Corps

Dated: July 20, 2007

EXHIBIT B

WAIVER OF LIABILITY AND ASSUMPTION OF RISK AGREEMENT UNITED STATES MARINE CORPS

In consideration of the privilege of participating in an organized event in a training area at Camp Lejeune, North Carolina, and further recognizing the voluntary nature of my participation in this event, I, the undersigned person, intending to be legally bound, hereby promise to waive for myself, my guardians, heirs, executor, administrators, legal representatives and any other [*36] persons on my behalf, any and all rights and claims for damages, demands, and any other actions whatsoever, including those attributable to simple negligence, which I may have against any of the following persons or entities: the United States of America; the Depart of Defense; the Department of the Navy; the United States Marine Corps; Marine Corps Base, Camp Lejeune, North Carolina; any and all individuals assigned to or employed by the United States, including but not limited to the Secretary of Defense; the Secretary of the Navy; the Commandant of the Marine Corps; Commanding General, Marine Corps Base, Camp Lejeune, North Carolina; in both their official and personal capacities; any medical support personnel assigned thereto; and these, persons’ or entities’ representatives, successors, and assigns; which said injuries arise out of my participation in the activities comprising the aforesaid event; as well as any use by me of any Marine Corps Base, Camp Lejeune, North Carolina, or government equipment, or facilities in conjunction with and furtherance of such participation by me. I FURTHER VERIFY THAT I HAVE FULL KNOWLEDGE OF THE RISKS ASSOCIATED WITH ATTENDING THIS EVENT. I EXPRESSLY, [*37] KNOWINGLY, AND VOLUNTARILY ASSUME THE RISKS INVOLVED IN THE PLANNED ACTIVITIES INCLUDING TRANSPORTATION TO AND FROM THE EVENT, AND AGREE TO HOLD THE UNITED STATES HARMLESS FOR ANY RESULTING INJURY. I understand that this assumption of risk agreement shall remain in effect until notice of cancellation is received by the Commanding General, Marine Corps Base, Camp Lejeune, North Carolina. I understand that, should I decline to execute this agreement, I will not be permitted to attend the organized event.

(Signature of Witness)

[TEXT REDACTED BY THE COURT]

/s/ Morgan E. Kelly 7/19/07

(Signature) (Date)

Morgan E. Kelly

(Printed Name)

/s/ Pamela D. Kelly

(Signature of Parent/Guardian)

on behalf of Morgan

(Name of Minor)

Date: 7-20-07

Participants Information/POC Page

FOR OFFICIAL USE ONLY

(Please Print Legibly)

Participant Last Name, First Name, Initial: Kelly Pamela D

Parent/Guardian Name: Pam Kelly

Home Phone: [TEXT REDACTED BY THE COURT]

Work Phone: [TEXT REDACTED BY THE COURT]

Cellular Phone: [TEXT REDACTED BY THE COURT]

Alternative Adult to be Contacted in Case of Emergency and Relation to Participant: Terry Kelly

Home Phone: [TEXT REDACTED BY THE COURT]

Work Phone: [TEXT REDACTED BY THE [*38] COURT]

Cellular Phone: [TEXT REDACTED BY THE COURT]

Does the Participant have Any Allergies or Special Medical Conditions? None

ADDENDUM B

Naval Junior Reserve Officers Training Corps (NJROTC)

Standard Release Form With Certificate of Authenticity

Dated: July 13, 2007

EXHIBIT 2

CERTIFICATE OF AUTHENTICITY

The undersigned certifies that I am the person responsible for keeping of school and\or student records in behalf of the Henry County Board of Education and that the within and attached is a true and accurate copy of certain school system records of

Morgan Kelly (DOB: [TEXT REDACTED BY THE COURT])

thereof kept in the normal course of business of the Henry County School System. This Certificate of Authenticity may be used in lieu of the personal appearance of the person certifying hereto.

/s/ Archie Preston Malcom

Archie Preston Malcom, Bd.D

Compliance Officer (Contracted)

11-14-2013

Sworn to and subscribed before me on this 14th day of November 2013

/s/ Slyvia S/ Burch

Notary Public

My Commission Expires: 07/21/16

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Colorado Alliance for Environmental Education is looking for sponsors for its Teaching Outside the Box Conference.

The Conference is packed with great sessions on a variety of topCAEEics and from a variety of talented presenters. Megan Wilhite (CPW) and Lisa Eadens will be presenting about the Careers in Natural Resources Initiative along with several other presentations highlighting ways to engage youth, promote inclusiveness, and build a successful career path.

 

The Colorado Alliance for Environmental Education would like to announce an opportunity to attend, exhibit or sponsor at our upcoming Teaching Outside the Box Conference and Awards for Excellence in Environmental Education-March 20th-22nd.

 

Below is more information on the conference as well as a reminder to sign up for the Careers in Natural Resources Summit on February 18.

 

Teaching Outside the Box (TOTB) Conference & Awards for Excellence in Environmental Education Celebration

 

Conference Dates:       Thursday, March 20- Saturday, March 22, 2014

 

Awards Banquet Date:  Friday, March 21, 2014, 6:00-9:00pm

 

Location:    University of Denver

 

Join the Colorado Alliance for Environmental Education for the opportunity to connect, share, learn and

 

English: Environmental Education in Pemba, Tan...

English: Environmental Education in Pemba, Tanzania (Photo credit: Wikipedia)

celebrate the great work and accomplishments of the environmental education community!

 

Teaching Outside the Box Conference: Participants can enjoy one or two days of sessions, roundtable discussions, networking opportunities, and inspiring keynotes. Click here for general information on the conference as well as specific information on the following conference components.  Register by February 24 for discounted early bird rates!

 

Conference Sessions Online: The conference offers a variety of interesting session topics for both formal and non-formal educators and administrators/managers. Click here for the full session listings.

 

Exhibitors-Register by February 7: If you are interested in showcasing your organization, program, and/or products/services as a conference exhibitor, please register by February 7.  There are a limited number of exhibitor spaces and are accepted on a first come, first serve basis. Click here for more information.

 

Sponsorship & Booklet Ads-Request By February 13: If you are interested in sponsorship opportunities at the conference and/or awards banquet through in-kind donations, monetary sponsorship or advertisement in the event booklet, click here for more information.

 

Awards for Excellence in Environmental Education Banquet: Each year individuals and organizations from around the state of Colorado are recognized and honored for their hard work and dedication in the field of environmental education.  Come network and celebrate Friday night of the conference at the awards banquet. Click here for more information on this event and the 2013 award recipients.

 

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Every legal problem does not have to have a legal solution. Sometimes you can just think!

Flag of the Red Cross Suomi: Punaisen Ristin l...

Damned if you do, Damned if you don’t really means you need to think

harder. Don’t make a rule or requirement; create a solution, solve the problem. Incentivize your employees to get training, advanced first aid training, and you avoid the legal problems and create a better work environment. Make a rule live and die by it. Provide training, incentive’s hire right and you don’t need the rule.

An article was posted recently about how outfitters and guides are damned if they do and damned if they don’t.  The issue was whether the outfitter should require their employee/guides to have first aid training. Legally, the answer was a mixed bag; whatever decision you the outfitter made would both increase and decrease your risk. The article was 100% correct………legally.

However, that is not the end of the discussion (it was the end of the article). There are several ways you could have guides who have first aid training without making a rule.

1.   The easiest way is to hire guides with first aid training. It does not have to be a requirement; it is just something you look for in an employee.

2.   You could provide incentives to your employees to go get first aid training. You could provide paid study time, study help or even pay for successfully passing a first aid training course. All are relatively cheap, provide a great benefit to both the guide and the employee, provide your guests with first aid trained guides and not put your neck in a noose.

3.   You can pay guides more who are first aid trained. Simply, the more training you have the more money you can make. Basic first aid provider with an eight-hour card is paid less than an EMT.

4.   You can make first aid training a requirement for promotions or pay raises. If you say that your chances of getting a pay raise or a promotion is greater with first aid training do you think your employees will go get trained?

5.   You can do the training yourself. One ski area I worked at became an EMT instructional organization and twice a week provided free EMT classes to its employees. By the end of the ski season, the number of EMT’s doubled on the ski patrol.

You can take a Red Cross Instructor course and the required first aid courses and quite soon become a Red Cross first aid instructor.

Teaching your guide’s first aid is the best first aid training your guests could ever hope for. Your guides will be trained in the problems your business sees. They will be trained with the equipment you carry and use. (I can’t tell you how many times I’ve come across a problem and dug through someone else’s first-aid kit hoping they had a particular item.)

English: First aid training dummies.

English: First aid training dummies. (Photo credit: Wikipedia)

Your guides trained by you in the real problems they may face with the equipment they will be

using.

Here are five simple solutions to the problem. All solve the problem without creating a damned if you do, damned if you don’t situation. More importantly you have created an incentive in your employees without making rules, to help your employees and your business get better!

Do Something

Remember Marketing makes promises that Risk Management has to pay for? Man times outfitters advertise the first aid training of their guides; that is Marketing. What if you have made the promise that your guides do have first aid training? What if they don’t?

An example of how that could occur?

You advertise that each trip will have at least one EMT on the trip. The trip has four guides; one EMT and three basic first aiders.  Halfway through the trip the EMT is evacuated. The trip can go on with three guides. However, what is going to have if someone is injured after the EMT has left the trip?

Have you not broken one of your own marketing rules? Have you not breached the standard of care you advertised to your guests?

You can always answer your quest’s questions. “Yes, we try to have an EMT on every trip, and all of our guides have first aid training.” Answering a question is not something on your website or brochure that will come back to haunt you.

Solve the problem; don’t legally put yourself in a box to become a target.

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

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Training Peaks is leading the pack in creating a website that works for training

Don’t pay to just record what you have done, that you can do on a piece of paper

Until recently, all software and web based performance programs just recorded what you did. Although it supplies some ego gratification, it does nothing to provide information on how to get better. To do that you need to compare days, weeks and sometimes months of Training Peaks 1training.

Normally that required downloading the info to a spreadsheet and writing your own formula’s to figure out what you had been doing and needed to do. Most coaches worked that way. Once you downloaded your results from your bike or running computer (or phone now days) you sent it in a spreadsheet to your coach.

Training Peaks has been working that direction and announced the next stage in that evolution. Once you upload information to the Training Training Peaks 3Peaks site it will compare your heart rate and power readings to previous uploads and let you know if your training is working.

This is still not what is needed to effectively train; however there is at least one program that understands that graphics online do nothing to help you get better. At present, a spreadsheet can do more to increase your performance than any software or web program.

See Coming Soon: Threshold Improvement Notifications and More

What do you think? Leave a comment.Training Peaks 2

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New book on how to train with a power meter on a bike

Power meters do not allow you to be misled the way a heart rate monitor may

If you don’t know how to use it, a power meter is just an overpriced cycling computer. Joe Friel’s new book The Power Meter Handbook makes understanding a power meter easy. In his friendly user guide to power meters, the most trusted coach in cycling and triathlon offers a simplified approach to using a power meter for road cycling, triathlons, time trials, century rides, and Gran Fondos. The Power Meter Handbook is now available in bookstores, bike and tri shops, and online. Preview the book at http://rec-law.us/PsMO2C.

Friel’s approach to power meters can immediately improve a cyclist’s speed and power. After learning Friel’s recommended ways to set up a power meter for specific uses, riders will master the basics and learn their key power numbers. By focusing on the most important numbers, cyclists and triathletes will discover hidden pockets of power, find ways to improve their pacing, and find out how many matches they can burn on any given day.

The Power Meter Handbook includes weekly training schedules to prepare more efficiently for road racing, time trials, triathlons, and century rides. Riders will match their training to their upcoming race or event schedule and push their power envelope step by step. Friel explains how to sift through noisy data to find the numbers that matter, pinpointing fitness changes to peak predictably for key events. Friel’s 12 power-based workouts will build up a rider’s power profile through aerobic endurance, muscular force, sprint speed, and climbing ability.

Power meters aren’t just for racers anymore. Friel’s Power Meter Handbook makes it easy for any cyclist or triathlete to find new speed with cycling’s most effective training tool.

The Power Meter Handbook: A User’s Guide for Cyclists and Triathletes Joe Friel Paperback with charts and tables throughout 6″ x 8″, 240 pp., $16.95, 978-1-934030-95-0

Joe Friel is the best-selling author of The Cyclist’s Training Bible and The Triathlete’s Training Bible and is a cofounder of TrainingPeaks, the most popular training software platform. As one of America’s most trusted coaches, he has trained national athletes and represented the United States at world championships. Learn more at http://www.TrainingBible.com.

VeloPress publishes books for cyclists, triathletes, and runners that help beginners and committed athletes build fitness and achieve their goals. VeloPress is a division of Competitor Group, which publishes Velo, Triathlete, Inside Triathlon, and Competitor magazines. For more information, please visit http://rec-law.us/O06vQU.

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NSGA Research Newsletter: May 2012 Running is growing and Bicycle Imports up slightly!

NSGA

National Sporting Goods Association

Research Newsletter Compliments of the National Sporting Goods Association

Running/Jogging Participation Shows Strong Growth: Team Sports Mixed

Running/Jogging, which grew by 10.3% in 2010, continued its strong growth in 2011. Data in NSGA’s annual “Sports Participation – Series I and II” reports, now available, shows running/jogging with 38.7 million participants in 2011, an increase of 8.9% compared to 35.5 million in 2010. Since the association began surveying running/jogging in 1984 (29.5 million participants), participation has grown by 30.9%.Among sports and activities with 10 million or more participants, the overall percentage leaders were aerobic exercising and running jogging, both showing an 8.9% increase. Aerobic exercising increased from 38.5 million participants in 2010 to 42.0 million participants in 2011. Tennis (13.1 million) showed a 7.0% increase, followed by yoga (21.6 million), 6.9%; hiking (39.1 million), 3.8%; and backpack/wilderness camping (11.6 million), 3.7%.

The overall percentage leader was kayaking, which showed a 26.6% increase to 7.1 million participants. Several other activities with fewer than 10 million participants showed increases in 2011, including cross country skiing (2.3 million), 11.5%; and target shooting-shotgun (9.5 million), 2.0%.

Among traditional team sports, wrestling led with a strong increase of 9.4% to 3.2 million. Gymnastics continued to increase, up 7.6% to 5.1 million and soccer was up 3.0% to 13.9 million. Among the team sports showing a decline, ice hockey (3.0 million) was down 9.2%; volleyball (10.1 million) down 5.1%; softball (10.4 million) down 4.2%; tackle football (9.0 million) down 3.0%; basketball (26.1 million) down 2.9%; and baseball (12.3 million) down 1.9%. This contrasts with 2010 increases in basketball (10.1%), baseball (8.9%), ice hockey (7.9%), and tackle football (4.8%).

For this survey, a participant is someone age seven or older who takes part in the sport or activity more than once in a calendar year. “Sports Participation in 2011 — Series I and II” cover 47 sports, recreation and fitness activities.

These reports have been published by NSGA for more than 25 years. They provide data on total 2011 participation, frequency of participation, and mean (average) and median (mid-point) number of participation days. Single-time participation, which is not counted in the total, is included separately.

Demographic data on participants includes gender, age, mean and median age by gender, gender by age, household income, and education of male and female head of household. Geographic analysis includes nine census regions and metro area size.

For more information and/or pricing for these and other NSGA research reports, please contact the NSGA Research Department, (847) 296-6742, ext. 108.

 

 

Bicycle Imports Up Slightly but Unit Value Down

Bicycle imports rose only 2% through February 2012 Year-to-Date compared to February 2011 according to U.S. Department of Commercedata. Total units imported through February were 2,027,404 up 34,575 from February 2011.Imports of kids’ bikes were up 29% to 604,645 with a value of $18.3 million, through February.

Among adult bikes, imports of mountain and comfort bikes decreased 17% to 545,548 units, with a value of $72.7 million.

Imports of 27-inch and 700C bikes were basically flat at 235,713 (valued at $69.5 million) for the second month of 2012, compared to 236,624 units through February last year.

Average unit value of an imported bicycle fell 8% for 2012 from $103.00 in 2011 to $95.00 in 2012.

In 2011, 15.65 million bicycles were imported into the U.S., with a value of $1.40 billion. Unit imports decreased 21.0% but their value increased 23.6%.

In 2010, 19.77 million bicycles were imported into the U.S., with a value of $1.43 billion. Unit imports increased 33.2% but their value dropped 1.7%.

 


Conning v. Dietrich, 2011 NY Slip Op 51340U; 32 Misc. 3d 1215A; 2011 N.Y. Misc. LEXIS 3481

Conning v. Dietrich, 2011 NY Slip Op 51340U; 32 Misc. 3d 1215A; 2011 N.Y. Misc. LEXIS 3481
Suzanne M. Conning, Plaintiff, against Robert J. Dietrich, BROOKLYN TRIATHLON CLUB and JOHN STEWART, Defendants.
32474/08
SUPREME COURT OF NEW YORK, KINGS COUNTY
2011 NY Slip Op 51340U; 32 Misc. 3d 1215A; 2011 N.Y. Misc. LEXIS 3481
July 15, 2011, Decided
NOTICE: THIS OPINION IS UNCORRECTED AND WILL NOT BE PUBLISHED IN THE PRINTED OFFICIAL REPORTS.
CORE TERMS: bicycle, training, triathlon, route, summary judgment, shoulder, weekend, roadway, ride, cyclist, riding, participating, cycling, recreational, risk of injuries, issues of fact, participated, cross-claims, bicyclist, verified, hazard, sport, assumption of risk, experienced, recreation, amusement, triable, speed, mile, paceline
HEADNOTES
[**1215A] Negligence–Assumption of Risk–Injury during Cycling Event. Release–Scope of Release.
COUNSEL: [***1] For CONNING, Plaintiff: Alan T. Rothbard, Esq., Harrison & Rothbard, P.C., forest Hills, NY.
For DIETRICH, Defendant: Michael J. Caulfield, Esq., Connors & Connors, PC, Staten Island NY.
For STEWART & BTC, Defendant: French & Casey LLP, NY NY.
JUDGES: HON. ARTHUR M. SCHACK, J. S. C.
OPINION BY: ARTHUR M. SCHACK
OPINION
Arthur M. Schack, J. [*2]
Plaintiff SUZANNE M. CONNING (CONNING), a resident of Brooklyn (Kings County), fell off a bicycle while participating in an August 2, 2008 triathlon training ride on New York State Route 28, a designated state bicycle route, in Ulster County. After her fall she was struck by an automobile owned and operated by defendant ROBERT J. DIETRICH (DIETRICH). Plaintiff had been training intensively for two upcoming triathlons she planned to enter. Defendant BROOKLYN TRIATHLON CLUB (BTC) organized weekend trips to allow triathletes, such as plaintiff CONNING, to train for upcoming events. Defendant BTC designated defendant JOHN STEWART (STEWART) to lead its cycling training the weekend of plaintiff CONNING’s accident.
Defendants BTC and STEWART move for summary judgment and dismissal of plaintiff’s verified complaint and all cross-claims against them, pursuant to CPLR Rule 3212, alleging, among [***2] other things, that: plaintiff CONNING assumed the risk of injuries she sustained by voluntarily participating in defendant BTC’s triathlon training weekend; and, plaintiff CONNING signed a valid waiver of liability releasing defendants BTC and STEWART from any liability that they may sustain in a BTC event. Defendant DIETRICH moves for summary judgment and dismissal of plaintiff’s verified complaint and all cross-claims against him, pursuant to CPLR Rule 3212, alleging that: plaintiff CONNING caused her own accident by following the cyclist in front of her too closely; and, there is no evidence that defendant DIETRICH failed to use reasonable care in the operation of his motor vehicle. Plaintiff opposes both motions. For the reasons to follow, the Court grants summary judgment to defendants BTC and STEWART and denies summary judgment to defendant DIETRICH.
Background
Plaintiff CONNING had experience as a “triathalete” before the subject accident, having participated in three prior triathlons and other organized bicycling events, including a thirty-five (35) mile bike tour in September or October 2006. When plaintiff lived in Arizona, from 2001-2005, she participated several times per [***3] month in organized and informal cycling rides and mountain biked several times per year. Subsequently, plaintiff moved to New York and joined BTC in November 2007. In 2008, plaintiff began participating in instructional cycling rides with BTC members. Plaintiff Conning testified in her examination before trial (EBT) that: she gradually increased the frequency of her rides and the distance covered to develop endurance and strength; her training rides included bike paths in Brooklyn with pedestrians and highways with motor vehicles; and, she was aware of the potential hazards a cyclist encounters on roads, including small stones, ruts and cracks.
Defendant BTC organized a triathlon training weekend for the first weekend of August 2008, based in Phoenicia, New York, to train its members in the skills necessary for triathlon events. Plaintiff signed BTC’s waiver of liability, on July 29, 2008, before commencing training with BTC. Then, plaintiff CONNING voluntarily took part in BTC’s three (3) day training camp in preparation for her planned participation in upcoming triathlons. Plaintiff testified, in her [*3] EBT, that on Friday, August 1, 2008, she participated in a twenty (20) mile bicycle [***4] ride and then chose to take a thirty-five (35) mile ride the next day, led by defendant STEWART. In the August 2, 2008-ride, the six riders stayed in a paceline if the road was straight and level. In a paceline, bicycle riders, to reduce wind resistance, ride in a line with each bicycle approximately twelve to eighteen inches behind each other.
After the group traveled about twenty-five (25) miles, while on Route 28, plaintiff CONNING was last in the paceline, to keep weaker cyclists in front of her. The paceline was on the shoulder of Route 28, separated from vehicular traffic by a white line. Plaintiff CONNING testified, in her EBT, that while she was following a fellow cyclist, Cindy Kaplan, she observed the shoulder narrowing and a difference in elevation between the shoulder and the gravel area to the right of the shoulder. When plaintiff observed Ms. Kaplan leave the shoulder and swerve right onto the gravel surface, plaintiff voluntarily followed. Plaintiff testified, in her EBT, that she then attempted to get her bicycle back onto the shoulder, at which point the front wheel of her bicycle caught the slight rise in the shoulder’s elevation. This caused her wheels to stop and [***5] plaintiff CONNING was propelled over her bicycle’s handlebars onto Route 28’s roadway. Then, plaintiff CONNING was struck by defendant DIETRICH’s vehicle, which was traveling on Route 28. Further, plaintiff admitted that prior to the accident she never complained about roadway conditions to STEWART.
Summary Judgment Standard
The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case. (See Alvarez v Prospect Hospital, 68 NY2d 320, 324, 501 N.E.2d 572, 508 N.Y.S.2d 923 [1986]; Zuckerman v City of New York, 49 NY2d 557, 562, 404 N.E.2d 718, 427 N.Y.S.2d 595 [1980]; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404, 144 N.E.2d 387, 165 N.Y.S.2d 498 [1957]). Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers. (Winegrad v New York University Medical Center, 64 NY2d 851, 476 N.E.2d 642, 487 N.Y.S.2d 316 [1985]; Qlisanr, LLC v Hollis Park Manor Nursing Home, Inc., 51 AD3d 651, 652, 857 N.Y.S.2d 234 [2d Dept 2008]; Greenberg v Manlon Realty, 43 AD2d 968, 969, 352 N.Y.S.2d 494 [2nd Dept 1974]).
CPLR Rule 3212 (b) requires that for a court to grant summary judgment the court must determine if the movant’s papers justify holding as a matter of law [***6] “that there is no defense to the cause of action or that the cause of action or defense has no merit.” The evidence submitted in support of the movant must be viewed in the light most favorable to the non-movant. (Boyd v Rome Realty Leasing Ltd. Partnership, 21 AD3d 920, 921, 801 N.Y.S.2d 340 [2d Dept 2005]; Marine Midland Bank, N.A. v Dino & Artie’s Automatic Transmission Co., 168 AD2d 610, 563 N.Y.S.2d 449 [2d Dept 1990]). Summary judgment shall be granted only when there are no issues of material fact and the evidence requires the court to direct judgment in favor of the movant as a matter of law. (Friends of Animals, Inc., v Associated Fur Mfrs., 46 NY2d 1065, 390 N.E.2d 298, 416 N.Y.S.2d 790 [1979]; Fotiatis v Cambridge Hall Tenants Corp., 70 AD3d 631, 632, 895 N.Y.S.2d 456 [2d Dept 2010]).
Plaintiff’s assumption of risk
Defendants BTC and STEWART make a prima facie entitlement to summary judgment and dismissal of the verified complaint and cross-claims against them because plaintiff CONNING assumed any risks involved with bicycle riding and she executed defendant BTC’s valid waiver of liability. The Court of Appeals, in Turcotte v Fell (68 NY2d 432, 502 N.E.2d 964, 510 N.Y.S.2d 49 [1986]), held, at 437: [*4]
It is fundamental that to recover in a negligence action a plaintiff must establish that the defendant [***7] owed him a duty to use reasonable care, and that it breached that duty . . . The statement that there is or is not a duty, however, begs the essential question — whether the plaintiff’s interests are entitled to legal protection against the defendant’s conduct. Thus, while the determination of the existence of a duty and the concomitant scope of that duty involve a consideration not only of the wrongfulness of the defendant’s action or inaction, they also necessitate an examination of plaintiff’s reasonable expectations of the care owed to him by others.
Further, in Turcotte at 438-439, the Court instructed that risks involved with sporting events:
are incidental to a relationship of free association between the defendant and the plaintiff in the sense that either party is perfectly free to engage in the activity or not as he wishes. Defendant’s duty under such circumstances is a duty to exercise care to make the conditions as safe as they appear to be. If the risks of the activity are fully comprehended or perfectly obvious, plaintiff has consented to them and defendant has performed its duty.
The doctrine of assumption of risk is “intended to facilitate free and vigorous participation [***8] in athletic activities.” (Benitez v New York City Bd. of Educ., 73 NY2d 650, 657, 541 N.E.2d 29, 543 N.Y.S.2d 29 (1989). However, “[a]s a general rule, [sporting event] participants may be held to have consented, by their participation, to those injury-causing events which are known, apparent or reasonably foreseeable consequences of the participation (see Maddox v City of New York, 66 NY2d 270, 277-278, 487 N.E.2d 553, 496 N.Y.S.2d 726 [1985]).” (Turcotte at 439). (See Benitez at 657; Murphy v Steeplechase Amusement Co., 250 NY 479, 482, 166 N.E. 173 [1929]). To establish plaintiff’s assumption of risk, “it is not necessary . . . that the injured plaintiff have foreseen the exact manner in which the injury occurred, so long as he or she is aware of the potential for injury from the mechanism from which the injury results.” (Maddox at 278). “If a participant makes an informed estimate of the risks involved in the activity and willingly undertakes them, then there can be no liability if he is injured as a result of those risks.” (Turcotte at 437). Further, the Turcotte Court, at 438, in defining the risk assumed, instructed that:
in its most basic sense it “means that the plaintiff, in advance, has given his * * * consent to relieve the defendant of an obligation [***9] of conduct toward him, and to take his chances of injury from a known risk arising from what the defendant is to do or leave undone. The situation is then the same as where the plaintiff consents to the infliction of what would otherwise be an intentional tort, except that the consent is to run the risk of unintended injury * * * The result is that the defendant is relieved of legal duty to the plaintiff; and being under no duty, he cannot be charged with negligence” (Prosser and Keeton, Torts § 68, at 480-481 [5th ed]; 4 Harper, James & Gray, [*5] Torts § 21.0 et seq. [2d ed]; Restatement [Second] of Torts § 496A comments b, c; see also, Bohlen, Voluntary Assumption of Risk, 20 Harv. L Rev 14 [assumption of risk is another way of finding no duty of care]; Comment, Assumption of Risk and Vicarious Liability in Personal Injury Actions Brought by Professional Athletes, 1980 Duke LJ 742).
Assumption of risk is frequently invoked in connection with voluntary participation in sports and recreational activities. “By engaging in a sport or recreational activity, a participant consents to those commonly-appreciated risks which are inherent in and arise out of the nature of the sport generally and [***10] flow from such participation.” (Rivera v Glen Oaks Village Owners, Inc., 41 AD3d 817, 820, 839 N.Y.S.2d 183 [2d Dept 2007]). In Sanchez v City of New York (25 AD3d 776, 808 N.Y.S.2d 422 [2d Dept 2006]), the Court dismissed plaintiff’s complaint because “the injured plaintiff assumed the risks inherent in playing baseball in the gymnasium where she sustained her injuries, including those risks associated with any readily observable defect or obstacle in the place where the sport was played.” In Cuesta v Immaculate Conception Roman Catholic Church (168 AD2d 411, 562 N.Y.S.2d 537 [2d Dept 1990]) the Court granted summary judgment to defendant. Plaintiff, voluntarily acted as an umpire in his son’s Little League game. While standing behind the pitcher, he was struck in the eye by a ball thrown by the catcher. The Court held, at 411, that “[t]he injury is one common to the sport of baseball, and was foreseeable by the plaintiff prior to accepting the job as umpire.” In an assumption of risk case, “[p]laintiff can avoid summary judgment only by demonstrating that the risk of injury was somehow unreasonably increased or concealed in the instant circumstances.” (Mondelice v Valley Stream Cent. High School Dist., 2002 N.Y. Misc. LEXIS 1292, 2002 NY Slip Op 50403 [U], *3 [***11] [Sup Ct, Nassau County 2002, Winslow, J.]).
Plaintiff CONNING, in the instant action, was aware of the inherent risks involved in triathlon participation. She was an experienced cyclist and prior to her accident previously participated in triathlons and cycling events. In addition, she participated in weekly training for triathlon events. At the time of her accident no risks inherent in bicycling were veiled or concealed from her. “[B]y engaging in a sport or recreation activity, a participant consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation.” (Morgan v State, 90 NY2d 471, 484, 685 N.E.2d 202, 662 N.Y.S.2d 421 [1997]). (See Marino v Bingler, 60 AD3d 645, 874 N.Y.S.2d 542 [2d Dept 2009]; Lumley v Motts, 1 AD3d 573, 768 N.Y.S.2d 24 [2d Dept 2003]; Cook v Komorowski, 300 AD2d 1040, 752 N.Y.S.2d 475 [4th Dept 2002]). “A reasonable person of participatory age or experience must be expected to know” that there are risks inherent with cycling. (Morgan at 488) A known, apparent or reasonably foreseeable consequence of participating in a sporting activity will be considered an inherent risk. (See Turcotte at 439; Tilson v Russo, 30 AD3d 856, 857, 818 N.Y.S.2d 311 [3d Dept. 2006]; Rubenstein v Woodstock Riding Club, 208 AD2d 1160, 617 N.Y.S.2d 603 [3d Dept. 1994]). [***12] Plaintiff, an experienced bicyclist, was aware of risks, in cycling on Route 28, when she left the shoulder where her training group was riding and went onto adjacent gravel. She should have been aware that road bikes of the type she was riding are designed to be ridden on pavement and their handling is greatly compromised on gravel.
Moreover, whether the risk of injury is open and obvious is a determinative factor in assessing plaintiff’s comparative fault. (See Palladino v Lindenhurst Union Free School Dist., 84 AD3d 1194, 924 N.Y.S.2d 474 [2d Dept 2011]; Krebs v Town of Wallkill, 84 AD3d 742, 922 N.Y.S.2d 516 [2d Dept 2011]; Bendig v [*6] Bethpage Union Free School Dist., 74 AD3d 1263, 1264, 904 N.Y.S.2d 731 [2d Dept 2010]; Mondelli v County of Nassau, 49 A.D.3d 826, 827, 854 N.Y.S.2d 224 [2d Dept 2008]; Mendoza v Village of Greenport, 52 AD3d 788, 861 N.Y.S.2d 738[2d Dept 2008]). Plaintiff CONNING, in the instant matter, alleges that defendants BTC and STEWART were negligent in allowing her to ride on “a decrepit and narrow path.” However, plaintiff rode her bicycle on the shoulder of Route 28 for one-tenth of a mile (about two city blocks) before her accident. She was able to observe the roadway as she was riding on the shoulder. Also, despite observing the narrowing of the [***13] shoulder, she continued to ride. Plaintiff, did not, as she knew she could have, slowed down or stopped.
Moreover, even for experienced cyclists “[t]he risk of striking a hole and falling is an inherent risk of riding a bicycle on most outdoor surfaces.” (Goldberg v Town of Hempstead, 289 AD2d 198, 733 N.Y.S.2d 691 [2d Dept. 2001]). Similarly, “the risk of encountering ruts and bumps while riding a bicycle over a rough roadway . . . is so obvious . . . or should be to an experienced bicyclist . . . that, as a matter of law, plaintiff assumed any risk inherent in the activity.” (Furgang v Club Med, 299 AD2d 162, 753 N.Y.S.2d 359 [1d Dept 2002]). Plaintiff, in the instant action, was participating in a guided bicycle tour conducted by defendants BTC and STEWART when she hit a rut, an inherent risk, and fell off her bicycle. (See Rivera v Glen Oaks Village Owners, Inc. at 820-821; Reistano v Yonkers Bd. of Educ., 13 AD3d 432, 785 N.Y.S.2d 711 [2d Dept 2004]). In Werbelow v State of New York (7 Misc 3d 1011[A], 801 N.Y.S.2d 244, 2005 NY Slip Op 50549[U] [Ct Cl, 2005]), a self-proclaimed “rather competent rollerblader” was injured after she fell over a “crack” on a New York State bicycle path and the Court found that plaintiff assumed the risk of injury. The Werbelow Court held, at *3, [***14] that “there is no indication that there were unreasonably increased risks’ in this case, or that defendant acted recklessly, intentionally, or concealed the risks, such that the doctrine of assumption of risk would not apply.” “Since the risk of striking a hole and falling is an inherent risk in riding a bicycle on most outdoor surfaces and the defective condition in this case was open and obvious, the infant plaintiff assumed the risk of riding her bicycle on the ballfield.” (Goldberg at 692). (See Rivera v Glen Oaks Village Owners, Inc. at 820). In the instant action, a rut in the road surface or a change in elevation between the shoulder and gravel area or a “decrepit and narrow” shoulder were not unique conditions created by either STEWART or BTC.
It is clear that defendants BTC and STEWART did not take plaintiff on an unreasonably dangerous roadway surface. The EBT testimony demonstrates that the cyclists did not anticipate that every patch of the roadway would be smooth. Cindy Kaplan, one of the cyclists in plaintiff’s training group, testified that “[i]n general the entire route was appropriate, the entire weekend was appropriate because that’s how the roads are Upstate . . . [***15] I guess you can’t expect it to be perfectly paved the whole time.” Plaintiff CONNING came into contact with a ledge or lip in the roadway while trying to get back on the path she diverged from. Unable to navigate the ledge or lip, she fell and was then struck by defendant DIETRICH’s passing car. Prior to plaintiff’s accident, defendant STEWART was diligent in pointing any roadway hazards to the bicycle riders in his group. The shoulder narrowing cannot be considered a roadway hazard because it was open, obvious and not something for cyclists to avoid. Thus, it is manifest that CONNING understood and assumed the risks of the activities she partook in based upon her prior participation in triathlons and cycling events before the date of her accident. Plaintiff CONNING assumed the risk in choosing to participate in the August 2, 2008 cycling event on Route 28 conducted by defendant BTC and led by defendant STEWART, with its known and obvious [*7] risks.
Plaintiff’s waiver of liability
Plaintiff CONNING, on July 29, 2008, signed defendant BTC’s waiver of liability making her aware of the risk of injury prior to her participation in BTC’s triathlon training weekend. This waiver states, in pertinent [***16] part:
I ACKNOWLEDGE that there may be traffic or persons ON THE course route, and I ASSUME THE RISK OF RUNNING, BIKING, SWIMMING OR PARTICIPATING IN ANY OTHER BTC EVENT. I also ASSUME ANY AND ALL OTHER RISKS associated with participating in BTC events including but not limited to falls, contact and/or effects with other participants, effects of weather including heat and/or humidity, defective equipment, the condition of the roads, water hazards, contact with other swimmers or boats, and any hazard that may be posed by spectators or volunteers. All such risks being known and appreciated by me, I further acknowledge that these risks include risks that may be the result of the negligence of the persons or entities mentioned above . . . or of other persons [or] entities. I AGREE NOT TO SUE any of the person or entities mentioned above . . . for any of the claims, losses or liabilities that I have waived, released or discharged herein. [Emphasis added]
It is undisputed that plaintiff CONNING, prior to and as a condition of participating in BTC’s training weekend, read and executed BTC’s waiver of liability. Therefore, she was aware of the risks explicitly stated in the waiver. Once “risks [***17] of the activity are fully comprehended or perfectly obvious” to plaintiff, plaintiff is deemed to have accepted the risks by taking part in the activity. (Turcotte at 439).
It is firmly established that a valid release which is clear and unambiguous on its face and which is knowingly and voluntarily entered into will be enforced as a private agreement between parties.” (Appel v Ford Motor Co., 111 AD2d 731, 732, 490 N.Y.S.2d 228 [2d Dept 1985]). Absent fraud, duress or undue influence, a party who signs a waiver will be bound by its terms. (Skluth v United Merchants & Mfrs., Inc., 163 AD2d 104, 106, 559 N.Y.S.2d 280 [1d Dept. 1990]). Plaintiff CONNING does not claim that she was fraudulently induced or unduly influenced or forced to sign BTC’s waiver of liability. She participated in BTC’s training weekend of her own free will and signed BTC’s waiver of liability as a condition of her participation in BTC’s events. A plain reading of the waiver of liability demonstrates that it relieves BTC and STEWART from liability for any injuries sustained by plaintiff CONNING, whether or not caused by defendants’ negligence.
In Castellanos v Nassau/Suffolk Dek Hockey, Inc. (232 AD2d 354, 648 N.Y.S.2d 143 [2d Dept 1996]), the Court found that the [***18] injury waiver form executed by plaintiff, an experienced deck hockey player, who participated in a deck hockey game at premises owned by one defendant and maintained or controlled by another defendant, was enforceable. The Court held, at 355, that:
The language of the agreement clearly expresses the intention of the parties to relieve the “organizers, sponsors, supervisors, participants, owners of the business and owners of the premises” of liability (see Lago v Krollage, 78 NY2d 95, 99-100, 575 N.E.2d 107, 571 N.Y.S.2d 689 [1991]). Moreover, the [*8] agreement is similarly clear in reciting that the plaintiff was aware of and assumed the risks associated with participating in the game of deck hockey (see Chieco v Paramarketing, Inc., 228 AD2d 462, 643 N.Y.S.2d 668 [2d Dept 1996]).
“In the absence of a contravening public policy, exculpatory provisions in a contract, purporting to insulate one of the parties from liability resulting from that party’s own negligence, although disfavored by the courts, generally are enforced, subject to various qualifications.” (Lago v Krollage at 99). However, an exculpatory agreement, as a matter of public policy, is void, “where it purports to grant exemption from liability for willful or grossly negligent [***19] acts or where a special relationship exists between the parties such that an overriding public interest demands that such a contract provision be rendered ineffectual.” (Lago v Krollage at 100). Thus, “it is clear . . . that the law looks with disfavor upon agreements intended to absolve an individual from the consequences of his negligence . . . and although they are, with certain exceptions, enforceable like any other contract . . . such agreements are always subjected to the closest of judicial scrutiny and will be strictly construed against their drawer.” (Abramowitz v New York University Dental Center, College of Dentistry, 110 AD2d 343, 345, 494 N.Y.S.2d 721 [2d Dept 1985]). (See Lago v Krollage at 100; Gross v Sweet, 49 NY2d 102, 106-107, 400 N.E.2d 306, 424 N.Y.S.2d 365 [1979]; Sterling Investors Services, Inc. v 1155 Nobo Associates, LLC, 30 AD3d 579, 581, 818 N.Y.S.2d 513 [2d Dept 2006]; Dubovsky & Sons, Inc. v Honeywell, Inc., 89 AD2d 993, 994, 454 N.Y.S.2d 329 [2d Dept 1982]).
In 1996, the New York Legislature, as a matter of public policy, enacted General Obligations Law (GOL) § 5-326, which states:
“[e]very covenant, agreement or understanding in or in connection with . . . any contract . . . entered into between the owner or operator of any . . . place of [***20] amusement or recreation . . . and the user of such facilities, pursuant to which such owner or operator receives a fee or other compensation for the use of such facilities, which exempts the said owner or operator from liability for damages caused by or resulting from the negligence of the owner, operator or person in charge of such establishment, or their agents, servants or employees, shall be deemed to be void as against public policy and wholly unenforceable.
Despite plaintiff CONNING’s contention that GOL § 5-326 applies to the instant action, it does not. Plaintiff CONNING did not sign BTC’s waiver of liability to participate in a “place of amusement or recreation” owned or operated by defendant BTC. Clearly, BTC does not own or operate Route 28 and plaintiff paid a fee to defendant BTC for training weekend expenses, not for her use of Route 28. Moreover, GOL § 5-326 does not apply to participants engaged in training events, because they are not recreational. The primary purpose of plaintiff CONNING’s August 2, 2008-ride was triathlon training.
Plaintiff, in Tedesco v Triborough Bridge & Tunnel Auth. (250 AD2d 758, 673 N.Y.S.2d 181 [2d Dept. 1998]), was injured on the Verrazano Narrows Bridge during [***21] a “five borough bicycle tour.” The Court held, at 758, that the release plaintiff signed was enforceable “since the Verrazano Narrows Bridge, where the plaintiff Tedesco was injured, is not a place of amusement or recreation.'” Similarly, in Brookner v New York Roadrunners Club, Inc. (51 AD3d 841, 858 N.Y.S.2d 348 [2d Dept 2008]), [*9] plaintiff sustained injuries in the 2004 New York Marathon, while running on a Brooklyn street. Plaintiff, prior to the race, signed defendant’s waiver of liability. The Court held GOL § 5-326 inapplicable to plaintiff because he paid an entry fee to participate in the Marathon, not an admission fee for use of a city-owned street. Further, the Court held, at 842, that “the public roadway in Brooklyn where the plaintiff alleges that he was injured is not a place of amusement or recreation.'” Similarly, in Bufano v. National Inline Roller Hockey Ass’n. (272 A.D.2d 359, 707 N.Y.S.2d 223 [2d Dept 2000]), the Court held that a member of an inline roller hockey league assumed the risk of injuries sustained from a fight with another player during a game. The Court held, at 359, that GOL § 5-326 did not “void the release Bufano signed, since the $25 he paid was not paid to the owner or operator of a recreational [***22] facility.” Further, the Court instructed, at 359-360, that “the liability release he signed expressed in clear and unequivocal language the intent to relieve the defendants of all liability for personal injuries to Bufano caused by defendants’ negligence. Thus, the release is enforceable.”
Plaintiff CONNING, in the instant action, paid $40 annual membership dues to BTC and paid BTC a registration fee for the August 2008 triathlon training weekend. She signed BTC’s waiver of liability to train on a “course route,” and did not pay a fee to use a “place of amusement or recreation.” Thus, GOL § 5-326 does not void the BTC waiver of liability signed by CONNING. (See Lago v Krollage at 101; Schwartz v Martin, 82 AD3d 1201, 1203, 919 N.Y.S.2d 217 [2d Dept 2011]; Fazzinga v Westchester Track Club, 48 AD3d 410, 411-412, 851 N.Y.S.2d 278 [2d Dept 2008]; Millan v Brown, 295 AD2d 409, 411, 743 N.Y.S.2d 539 [2d Dept 2002]). Further, the waiver of liability signed by plaintiff CONNING expressly relieves defendant BTC and its “employees, representatives, and any agents,” such as defendant STEWART from liability for injuries she sustained during the triathlon training weekend.
New York State Courts have uniformly found that when a sporting activity is [***23] “instructional” rather than “recreational” a waiver of liability will not be deemed void under GOL § 5-326. The Court in Boateng v Motorcycle Safety School, Inc. (51 AD3d 702, 703, 858 N.Y.S.2d 312 [2d Dept. 2008]), held that the release signed by a student motorcyclist, who fell from a motorcycle during a training session, was enforceable and not voided by GOL § 5-326 because “the defendants submitted evidence that the raceway premises, which the defendant leased to conduct its classes, were used for instructional, not recreational or amusement purposes.” (See Thiele v Oakland Valley, Inc., 72 AD3d 803, 898 N.Y.S.2d 481 [2d Dept 2010]; Baschuk v Diver’s Way Scuba, Inc. 209 AD2d 369, 370, 618 N.Y.S.2d 428 [2d Dept 1994]). Plaintiff CONNING, at the time of her accident was not taking a recreational bicycle ride but engaged in triathlon training supervised by defendant STEWART, an agent of defendant BTC. Plaintiff registered with BTC to participate in a triathlon training weekend to train for upcoming triathlons in which she planned to participate. Defendant BTC advertised the August 2008 training weekend as instructional, for participants to develop triathlon skills. Plaintiff confirmed this in her EBT testimony.
Defendants BTC and STEWART [***24] demonstrated that plaintiff CONNING knowingly and voluntarily executed a valid waiver of liability and assumed the risk of injury by riding her bicycle on a public roadway. Plaintiff CONNING’s arguments, in opposition to the instant motion of defendants BTC and STEWART, that her August 2, 2008-ride was “recreational” are mistaken. Moreover, the risks inherent in plaintiff CONNING’s August 2, 2008-instructional [*10] bicycle ride, that she consented to, were fully comprehended by plaintiff and obvious to her as an experienced cyclist. Therefore, without material issues of fact, the motion of defendants BTC and STEWART for summary judgment and dismissal of the verified complaint against them and all cross-claims against them is granted.
Defendant DIETRICH’s motion for summary judgment
Defendant DIETRICH’S summary judgment motion on liability is denied because of the existence of triable issues of fact. “It is well established that on a motion for summary judgment the court is not to engage in the weighing of evidence. Rather, the court’s function is to determine whether by no rational process could the trier of facts find for the nonmoving party’ (Jastrzebski v North Shore School Dist., 223 AD2d 677, 637 N.Y.S.2d 439 [2d Dept 1996]).” [***25] (Scott v Long Island Power Authority, 294 AD2d 348, 741 N.Y.S.2d 708 [2d Dept 2002]). Moreover, “[s]ummary judgment is a drastic remedy which should only be employed when there is no doubt as to the absence of triable issues.” (Stukas v Streiter, 83 AD3d 18, 23, 918 N.Y.S.2d 176 [2d Dept 2011]). As will be explained, there is no doubt that in the instant action, there are triable issues of fact that must be resolved at trial by the finder of fact. (Sillman v Twentieth Century-Fox Film Corp. at 404).
Defendant DIETRICH, the owner and operator of the motor vehicle that collided with plaintiff CONNING, admitted in his deposition that he was aware of the presence of plaintiff CONNING and other bicycle riders about 200 feet before the accident occurred [EBT – p. 19]. He also acknowledged that in the seconds before the accident, his wife, the front seat passenger “said I see a line of bikers up there. Slow down. Be careful.’ Then she said one of them might hit a stone or something in the road and fall into the road. [EBT – p. 17, lines 10-14].'” Further, defendant DIETRICH testified [EBT – p. 18] that he clearly saw the bicycle riders that his wife had spoken about and that the section of Route 28 where the subject accident [***26] occurred was straight [EBT – p. 20]. Moreover, defendant DIETRICH lived near the scene of the accident [EBT – p.10], on many prior occasions had observed bicycle riders on Route 28 [EBT – p. 22] and knew that Route 28 was a designated state bike route [EBT – p. 26]. Defendant DIETRICH stated that the speed limit on Route 28 was 55 miles per hour [EDT – p.23] and prior to the accident he was driving at that rate of speed [EBT – p. 24] until he saw the bikers and reduced his speed [EBT – pp. 39-40].
Defendant DIETRICH’s counsel, in P 22 of his affirmation in support of the motion, offers conjecture, without expert opinion, that “the plaintiff was following the bicyclist in front of her too closely which prevented her from properly using her senses to see what was before her. This caused her to lose control of the bicycle and to fall into the side of the defendant’s vehicle.” Plaintiff CONNING and the other cyclists were traveling in a paceline. If counsel for defendant DIETRICH believes that the paceline or the spacing of the bicycles was improper, counsel for defendant DIETRICH was obligated to present expert opinion in evidentiary form. However, counsel for defendant DIETRICH failed [***27] to do so.
Both plaintiff CONNING and defendant DIETRICH were under the same duty to operate their respective bicycle and motor vehicle in a safe manner, keep a safe lookout and avoid collisions. “A person riding a bicycle on a roadway is subject to all of the duties applicable to the driver of a vehicle (see Vehicle and Traffic Law [VTL] § 1231). (Thoresz v Vallone, 70 AD3d 1031, 894 N.Y.S.2d 769 [2d Dept 2010]). The Court, in Palma v Sherman (55 AD3d 891, 867 N.Y.S.2d 111 [2d Dept 2009], instructed: [*11]
In general, a motorist is required to keep a reasonably vigilant lookout for bicyclists, to sound the vehicle’s horn when a reasonably prudent person would do so in order to warn a bicyclist of danger, and to operate the vehicle with reasonable care to avoid colliding with anyone on the road. A bicyclist is required to use reasonable care for his or her own safety, to keep a reasonably vigilant lookout for vehicles, and to avoid placing himself or herself in a dangerous position (see Vehicle and Traffic Law § 1146; Rosenberg v Kotsek, 41 AD3d 573, 837 N.Y.S.2d 343 [2d Dept 2007]; Trzepacz v Jara, 11 AD3d 531, 782 N.Y.S.2d 852 [2d Dept 2004]; Redcross v State of New York, 241 AD2d 787, 660 N.Y.S.2d 211 [3d Dept 1997]; PJI 2:76A). Each is required to obey the statutes governing [***28] traffic and is entitled to assume that the other also will do so (see Rosenberg v Kotsek, 41 AD3d 573, 837 N.Y.S.2d 343 [2d Dept 2007]; Trzepacz v Jara, 11 AD3d 531, 782 N.Y.S.2d 852 [2d Dept 2004]; Redcross v State of New York, 241 AD2d 787, 660 N.Y.S.2d 211 [3d Dept 1997]; PJI 2:76A).
In the instant action there are material issues of fact whether defendant DIETRICH used that level of ordinary care that a reasonably prudent person would have used under the same circumstances and if not, whether the subject accident was foreseeable. (See PJI 2:10; PJI 2:12). “Whether a breach of duty has occurred, of course, depends upon whether the resulting injury was a reasonably foreseeable consequence of the defendants’ conduct.” (Danielenko v Kinney Rent A Car, Inc., 57 NY2d 198, 204, 441 N.E.2d 1073, 455 N.Y.S.2d 555 [1982]). Defendant DIETRICH had a duty of care to keep his vehicle under control and to reduce his speed to a safe level, which is clear from his acknowledgment that he took his foot off the gas pedal prior to the accident. VTL § 1180 (a) states that “[n]o person shall drive a vehicle at a speed greater than is reasonable and prudent under the conditions and having regard to the actual and potential hazards then existing [Emphasis added].” Thus, there is a triable issue [***29] of fact whether defendant DIETRICH’s rate of speed was “reasonable and prudent under the conditions and having regard to the actual and potential hazards then existing.” Also, VTL § 1146 requires a driver to “exercise due care to avoid colliding with any bicyclist.” It is a triable issue whether defendant DIETRICH could have avoided his collision with plaintiff CONNING.
The Court, by determining that triable issues of fact exist, denies defendant DIETRICH’s motion for summary judgment and dismissal of plaintiff’s verified complaint and all cross-claims against him.
Conclusion
Accordingly, it is
ORDERED, that the motion of defendants BROOKLYN TRIATHLON CLUB and JOHN STEWART for summary judgment and dismissal of the verified complaint and all cross-claims against them, pursuant to CPLR Rule 3212, is granted; and it is further;
ORDERED, that the motion of defendant ROBERT J. DIETRICH for summary judgment [*12] and dismissal of the verified complaint and all cross-claims against him, pursuant to CPLR Rule 3212, is denied.
This constitutes the Decision and Order of the Court.
ENTER
HON. ARTHUR M. SCHACK
J. S. C.