New Jersey Federal District Court decision attempts to narrow New Jersey law on releases by restricting the scope of the release.

NJ only allows releases to be interpreted narrowly and can only cover one issue.

Martin v. Hudson Farm Club, Inc. (D. N.J. 2021)

State: New Jersey, United States District Court, D. New Jersey

Plaintiff: David Martin and Luisa Martin

Defendant: Hudson Farm Club, Inc.; Lukas Sparling; and Griffin & Howe, Inc.

Plaintiff Claims: Not stated specifically, obviously negligence

Defendant Defenses: Release

Holding: For the Plaintiff

Year: 2021

Summary

The New Jersey appellate court found a release was void because it was written to cover a shooing event and NJ law does not allow releases to be interpreted broadly to cover the injury the plaintiff suffered, falling out of a trailer.

Facts

On September 19, 2017, Martin participated in a charitable clay shooting event at HFC in Andover, New Jersey. Upon arriving at HFC, Martin signed a Release and Hold Harmless Agreement (the “Release”), which consists of three “Sections” on a single page. (

The clay shooting event had multiple starting stations at which the charity participants would begin their shooting activities. While the charity participants at certain locations walked to those locations, others-including Martin- were transported to their starting location in wagons pulled by vehicles. Defendant Sparling drove the vehicle which pulled the wagon in which Martin rode. In route to the station, the tractor ascended an incline and, during the ascent, the vehicle stalled. While Sparling engaged the vehicles’ brakes, the vehicle and attached wagon began skidding backwards. Martin at some point during the descent leapt from the wagon and suffered injuries as a result.

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

The decision by the trial court came on a Motion for Summary Judgement. This case was brought in the Federal court system where decisions of the trial court are reported. State courts do not report decisions until they have been appealed to the appellate courts above the trial courts. Consequently, decisions by trial courts in the Federal system should be understood to be trial court decisions and in cases like these federal judges interpreting state law.

The defendant in this case filed a motion for summary judgement to dismiss the case based on the release. This decision then is based solely on the paperwork presented to the court without a trail or evidentiary hearings.

To start there were some evidentiary issues that the court pointed out as the plaintiff tried to wiggle out of prior sworn testimony. The plaintiff testified under oath at his deposition. After a deposition, you have the right to correct mistakes made by the court reporter during the deposition. A lot of time a lot of corrections are made to clean up testimony. In this case, fighting the defendant’s motion for summary judgment, the plaintiff filed affidavits, sworn statements, there were contrary to his sworn testimony during his deposition.

At best, the testimony made during a deposition is used a trial to make the deponent look bad. The person on the stand says he saw ABC, and the opposing attorney asks if he remembers being deposed, and if he remembers stating he says XYZ. Either the person on the stand looks like a liar or wiggles he way out of the mess.

Here the judge just noticed the issue.

There can be no dispute that the Martin Affidavit attests to certain facts that are contrary to those which he testified under oath in prior sworn testimony. Martin’s deposition testimony clearly evidenced that he did not read the Release prior to signing the document…

Later, the judge closed the door on the plaintiff’s attempt to play the system by being deposed and stating one thing and then trying to change those sworn statements by providing affidavits that stated differently.

Martin cannot now-well after discovery closed and nearly two and half years after he was deposed-contradict his own testimony to give rise to a dispute of material fact in connection with the Parties’ competing motions. This is plainly improper, and the affidavit will be set aside as a sham affidavit.

The court then went into whether the release was valid under New Jersey law. New Jersey has a plain language statute, Plain Language Review Act (“PLRA”), N.J.S.A. 56:12, that applies to all consumer contracts. The statute has six factors the court must review to make sure the consumer contract does not violate the statute.

The statute sets forth six non-exclusive factors that a court “may consider” in its determination of whether a consumer contract is “clear, understandable and easily readable, ” including:

(1) Cross references that are confusing;

(2) Sentences that are of greater length than necessary;

(3) Sentences that contain double negatives and exceptions to exceptions;

(4) Sentences and sections that are in a confusing or illogical order;

(5) The use of words with obsolete meanings or words that differ in their legal meaning from their common ordinary meaning;

(6) Frequent use of Old English and Middle English words and Latin and French phrases.

The court found, other than the font size, that the release did not violate the plain language statute. However, the court found that since the plaintiff admitted he never read the release; the size of the font could not have any bearing on the legal issues.

New Jersey has a four-point test the release must meet to be valid.

…will be enforced if (1) it does not adversely affect the public interest; (2) the exculpated party is not under a legal duty to perform; (3) it does not involve a public utility or common carrier; or (4) the contract does not grow out of unequal bargaining power or is otherwise unconscionable.

The court started out reviewing why releases in these cases are such a problem in American law. US law in all fifty states requires business owners to keep their premises safe for their guests. Safe does not mean the elimination of the inherent risk of entering into a business or the open and obvious risk upon entering the premises. Nor is the business owner liable beyond the “ordinary duty owed to business invitees, including exercise of care commensurate with the nature of the risk, foreseeability of injury, and fairness in the circumstances.”

A release, therefore, waives the duties of a business owner to keep the premises safe. That bothers most courts hence you get the line “reviewed with enhanced scrutiny,” “views such exculpatory releases with disfavor,” “looked upon unfavorably” or “subject to close judicial scrutiny.” These are legal terms of art used to identify this chasm in the legal field. The duty of a business owner to keep the premises safe and ability for two parties to freely contract.

In this case, this issue allowed the court to look at the release only as to the risky activity, not broadly for any injury that could befall the plaintiff. As such, the release was for injury for engaging in shooting sports, not for riding on a trailer. The release is not reviewed broadly in New Jersey, thus the injury the plaintiff suffered since it was not from engaging in a shooting sports activity, was not covered.

By contrast, New Jersey courts will set aside exculpatory clauses where a potential claim arises from an activity that is not squarely within the ambit of the risky activity offered by an establishment.

The court further divided the risks in its analysis.

Here, the “inherent risky nature” of Defendants’ firearm business was immaterial to the injury Martin suffered. Martin’s injury occurred while he was being transported in a tractor-pulled wagon to his starting shooting location. The Release, while clearly referring to various elements of using a firearm-such as the “rental, instruction, [or] use . . . of firearms” and “discharge of firearms and firing of live ammunition”- does not self-evidently concern transportation while on the property.

The court then went on and held that were so disputed material facts, facts that can only be decided by a jury, that summary judgement could not be granted. This issue came back to whether or not the plaintiff had time to review the release before signing.

The court then circled back around to the “time to sign” issues. The plaintiff stated:

However, Plaintiffs contend that Martin had a limited opportunity to review and consider the Release prior to assenting to its terms. When asked at his deposition why he failed to read the Release, Martin testified that “there was about twenty people in line behind me, and we were a press for time to get the events started.

The court felt that this situation created “procedural unconscionability” if the plaintiff felt rushed to sign the release. If a release is unconscionable, then it is void in New Jersey. This is the fourth test to determine if a release is valid under New Jersey law.

A long appellate court opinion to determine two legal arguments as to why a release would not stop the claims of the plaintiff.

So Now What?

New Jersey is sliding into one of those states where releases are difficult to write. Over a decade ago the court held a parent could not sign away a minor’s right to sue, and this decision is following down the path of narrowing what a release can accomplish.

The issue that is frustrating is whether or not the plaintiff had time to read the release before signing. The law consistently states if you signed the document you read the document.

To prevent this from happening in your business you should do several things. First make sure you tell everyone who may be attending your event, program or business that they must sign a release. Second, make sure you make the release available to everyone in advance. Put the release on your website and allow participants and guests to download the release in advance of attending. Third put language in the release that states the signor agrees they have had ample time to read and review the release, and they understand what they are signing and what the effects of their signing will be.

It is also interesting that after finding the release did not protect against the plaintiff’s claims because the release was too broad, it also developed the defense of unconscionability which also sent the release back to trial.

It is also interesting that because the plaintiff admitted to not reading the release, the court found this did not violate the New Jersey consumer contract law, and then later found because he said he had no time to read the release; it was improper to hold him to the release.

What do you think? Leave a comment.

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Martin v. Hudson Farm Club, Inc. (D. N.J. 2021)

DAVID MARTIN and LUISA MARTIN, Plaintiffs,
v.
HUDSON FARM CLUB, INC.; LUKAS SPARLING; and GRIFFIN & HOWE, INC Defendants.

Civil Action No. 18-02511

United States District Court, D. New Jersey

December 31, 2021

NOT FOR PUBLICATION

OPINION

Stanley R. Chesler, United States District Judge

This matter comes before the Court on the motions for summary judgment filed by Defendants Hudson Farm Club (“HFC”) and Lukas Sparling (collectively, the “HFC Defendants”), and Defendant Griffin & Howe, Inc. (“G&H” and, collectively with the HFC Defendants, “Defendants”), respectively, as to certain affirmative defenses which Defendants have asserted, pursuant to Federal Rule of Civil Procedure 56, and the motion filed by Plaintiffs David and Luisa Martin (“Plaintiffs”)[1] to strike those same affirmative defenses. As described, infra, the Court will convert Plaintiffs’ motion to strike into a competing motion for summary judgment concerning Defendants’ affirmative defenses. The Court has reviewed the papers submitted and proceeds to rule without oral argument, pursuant to Federal Rule of Civil Procedure 78. For the reasons that follow, Plaintiffs’ motion for summary judgment will be granted and Defendants’ motions for summary judgment will be denied.

I. Background[2]

On September 19, 2017, Martin participated in a charitable clay shooting event at HFC in Andover, New Jersey. (Pls.’ 56.1 Statement ¶ 1, 22-23; HFC 56.1 Statement ¶ 1; G&H 56.1 Statement ¶ 1.) Upon arriving at HFC, Martin signed a Release and Hold Harmless Agreement (the “Release”), which consists of three “Sections” on a single page. (Pls.’ 56.1 Statement ¶ 2; HFC 56.1 Statement ¶ 8; G&H 56.1 Statement ¶ 2.) Section I of the Release reads:

I HAVE BEEN ADVISED THAT THE RECREATIONAL USE OF FIREARMS IS AN INHERENTLY DANGEROUS ACTIVIT WHICH CAN AND DOES RESULT IN SERIOUS BODILY INJURY AND/OR DEATH ESPECIALLY IF SAFETY RULES ARE NOT OBEYED

In return for the use of the premises and equipment, I agree to indemnify, hold harmless and defend [G&H], [HFC] and [non-party] IAT Reinsurance Company Ltd. and its instructors, employees, directors, officers, agents, representatives, heirs, successors, and assigns from and against any and all claims, demands, causes of action, personal injury (including death), damages, costs, and expenses (including attorney’s fees), arising out of, related to, or connected with the rental of a firearm, instruction, use or discharge of firearms. I hereby further agree, on behalf of myself, executors and assigns, that I will not make any claim or institute any suit or action at law or in equity against [G&H], [HFC] and IAT Reinsurance Company Ltd. Related [sic] directly or indirectly to my use of the firearm referenced in this document or from my use or participation in any activity on this property. I expressly assume the risk of taking part in the activities on the premises, which include the discharge of firearms and firing of live ammunition.

Section II is entitled “FIREARM RENTAL USE” and requires that the signatory attest that they are “not subject to any of the disabilities set forth in N.J.S.A. 2C:58-3, ” concerning the purchase of firearms, and further requires that the signatory certify to other statements relevant to the individual’s rental of a firearm.[3] Section III is entitled “CONSENT FOR USE OF LIKENESS.” While Sections I and II bear Martin’s signature, Section III does not.

By his signature to Section I of the Release, Martin acknowledged that “[he] carefully read this agreement and fully underst[ood] its contents, ” (ii) that he was aware that the Release was an important legal document, and (iii) that he intended to be “fully bound by it.” (Pls.’ 56.1 Statement ¶ 16; HFC 56.1 Statement ¶ 9; G&H 56.1 Statement ¶ 4.) Notwithstanding this, Martin testified that he signed the Release without reading it.[4] (HFC 56.1 Statement ¶¶ 10-11; G&H 56.1 Statement ¶ 5; Martin Dep. Tr. at 44:3-25.)

The clay shooting event had multiple starting stations at which the charity participants would begin their shooting activities. (HFC 56.1 Statement ¶ 2; G&H 56.1 Statement ¶ 6.) While the charity participants at certain locations walked to those locations, others-including Martin- were transported to their starting location in wagons pulled by vehicles. (Pls.’ 56.1 Statement ¶¶ 26; HFC 56.1 Statement ¶¶ 10-11; G&H 56.1 Statement ¶ 6.) Defendant Sparling drove the vehicle which pulled the wagon in which Martin rode. (HFC 56.1 Statement ¶ 3; G&H 56.1 Statement ¶ 8.) In route to the station, the tractor ascended an incline and, during the ascent, the vehicle stalled. (HFC 56.1 Statement ¶¶ 10-11; G&H 56.1 Statement ¶ 9.) While Sparling engaged the vehicles’ brakes, the vehicle and attached wagon began skidding backwards. (HFC 56.1 Statement ¶ 4; G&H 56.1 Statement ¶ 9.) Martin at some point during the descent leapt from the wagon and suffered injuries as a result. (HFC 56.1 Statement ¶ 5; G&H 56.1 Statement ¶ 10.)

II. Discussion

Defendants bring their motions pursuant to Federal Rule of Civil Procedure 56 seeking summary judgment as to their respective affirmative defenses of release and waiver as a result of the Release, while Plaintiffs’ motion is styled as a motion to strike those affirmative defenses. Notwithstanding that the Parties have pursued motions under different rules, those motions concern solely the validity of the Release.[5]

Rule 12(f) of the Federal Rules of Civil Procedure, concerning a motion to strike, allows this Court to strike “any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter” in a pleading. Fed.R.Civ.P. 12(f). However, a motion to strike may be treated as a motion for partial summary judgment under Rule 56(d) when facts outside the pleadings are offered. See, e.g., United States v. Manzo, 182 F.Supp.2d 385, 395 n.6 (D.N.J. 2000) (“Because both parties refer to matters outside the pleadings and for the sake of consistency and clarity, the Court will generally treat the motion to strike as a motion for summary judgment.”); see also 5A Charles Alan Wright & Arthur Miller, Federal Practice and Procedure § 1380, at 647 (“[S]ome courts, when faced with affidavits on a Rule 12(f) motion to strike a defense, have treated the motion to strike as one for partial summary judgment.”).

In addition to the Parties’ initial submissions indicating their apparent understanding that they intended the Court to consider their motions on the evidentiary record established over the past three and a half years, the Court on October 1, 2021 ordered that the Parties comply with Rule 56(a) in setting forth that evidentiary record. In light of the facts presented in the various Rule 56.1 Statements and declarations and in consideration of the arguments set forth in the voluminous briefing before the Court, it makes little sense to treat Plaintiffs’ motion as a Rule 12(f) motion to strike a defense. Here, seeing no prejudice to Plaintiffs who have briefed the issue sufficiently and had the opportunity to proffer evidence in support of their arguments, the Court will exercise its discretion and consider Defendant’s Rule 12(f) motion to strike as a Rule 56(a) motion for partial summary judgment.

In evaluating the competing motions, the Court applies the well-established legal standard for summary judgment. Rule 56(a) provides that a “court shall grant summary judgment if the movant shows that there is no genuine issue 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 Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986) (construing the similarly worded Rule 56(c), predecessor to the current summary judgment standard set forth in Rule 56(a)). A factual dispute is genuine if a reasonable jury could return a verdict for the non-movant, and it is material if, under the substantive law, it would affect the outcome of the suit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In considering a motion for summary judgment, a district court “must view the evidence ‘in the light most favorable to the opposing party.'” Tolan v. Cotton, 134 S.Ct. 1861, 1866 (2014) (quoting Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970)). It may not make credibility determinations or engage in any weighing of the evidence. Anderson, 477 U.S. at 255; see also Marino v. Indus. Crating Co., 358 F.3d 241, 247 (3d Cir. 2004) (holding same).

A. The Evidentiary Record Properly Before the Court.

Once the moving party has satisfied its initial burden, the nonmoving party must establish the existence of a genuine issue as to a material fact to defeat the motion. Jersey Cent. Power & Light Co. v. Lacey Twp., 772 F.2d 1103, 1109 (3d Cir. 1985). To create a genuine issue of material fact, the nonmoving party must come forward with sufficient evidence to allow a jury to find in its favor at trial. Gleason v. Norwest Mortg., Inc., 243 F.3d 130, 138 (3d Cir. 2001), overruled on other grounds by Ray Haluch Gravel Co. v. Cent. Pension Fund of the Int’l Union of Operating Eng’rs and Participating Emp’rs, 134 S.Ct. 773 (2014). The party opposing a motion for summary judgment cannot rest on mere allegations; instead, it must present actual evidence that creates a genuine issue as to a material fact for trial. Anderson, 477 U.S. at 248; see also Schoch v. First Fid. Bancorporation, 912 F.2d 654, 657 (3d Cir. 1990) (holding that “unsupported allegations in [a] memorandum and pleadings are insufficient to repel summary judgment”).

1. The Court Will Disregard Plaintiffs’ Responses to Defendants’ Rule 56.1 Statements in Support of Defendants’ Respective Motions for Summary Judgement.

Rule 56(c)(1) expressly requires a party who asserts that a fact is genuinely disputed to support that assertion by:

(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or (B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.

Fed. R. Civ. P. 56(c)(1). If the non-movant fails to “properly support an assertion of fact or fails to properly address another party’s assertion of fact as required by Rule 56(c), the court may . . . consider the fact undisputed for purposes of the motion.” Fed.R.Civ.P. 56(e)(2). In the District of New Jersey, Local Civil Rule 56.1 imposes an additional requirement on both movants and non-movants related to summary judgment motions. The party moving for summary judgment must file a statement which lists, in separately numbered paragraphs, material facts the movant asserts are not in dispute, with citations to the specific portions of the record supporting those factual assertions. In turn, the party opposing summary judgment “shall furnish, with its opposition papers, a responsive statement of material facts, addressing each paragraph of the movant’s statement, indicating agreement or disagreement and, if not agreed, stating each material fact in dispute and citing to the affidavits and other documents submitted in connection with the motion.” L. Civ. R. 56.1(a). Indeed, the local rule warns that “any material fact not disputed [in such a responsive statement] shall be deemed undisputed for purposes of the summary judgment motion.” Id.

On August 23, 2021, in connection with Plaintiffs’ Motion (ECF No. 124), Plaintiffs submitted, among other things, the certification of their counsel, Howard R. Engle. (ECF Nos. 124-1; 124-3.) Mr. Engle’s certification, which purported to be factual in nature, consisted of (i) facts not within his personal knowledge, (ii) legal arguments, and (iii) conclusions of law. (ECF No. 124-1.) Furthermore, in connection with Plaintiffs’ September 15, 2021 opposition to Defendants’ respective motions, Plaintiffs submitted “Certification[s] and Statement[s] of Undisputed Facts” by Mr. Engle. (ECF Nos. 129-1; 130-1.) These documents were far from the “responsive statement[s] of material facts” required pursuant to Local Rule 56.1(a).[6] Rather than “indicating agreement or disagreement” with “each paragraph” of Defendants’ Rule 56.1 Statements as required by the Rules, Plaintiffs proceeded to set forth dozens of their own purportedly “undisputed material facts.”[7] In light of these procedural improprieties, on October 1, 2021, the Court struck certain certifications which Plaintiffs submitted in support of their Motion and in Opposition to Defendants Motions and, to establish an orderly recounting of the material facts, ordered that Plaintiffs file: (i) a statement of material facts not in dispute in support of their motion, pursuant to Local Rule 56.1(a) and (ii) proper statements of material facts not in dispute in response to those submitted by Defendants in support of their respective motions. (ECF No. 138).

While Plaintiffs complied with the command to submit a Rule 56.1 statement in support of their motion, they again failed to submit responses to Defendants’ respective Rule 56.1 statements in a manner which complied with the Rules. Instead of making a submission consistent with the Rules, Plaintiffs again submitted statements of purported facts that are unmoored from and unresponsive to those statements which Defendants submitted. Plaintiffs have now twice failed to comply with Rule of Federal Civil Procedure 56.1 and Local Rule 56.1-including after the Court’s express order that Plaintiffs do so-by failing to address, on a paragraph-by-paragraph basis, the material facts as set forth in the Defendants’ Rule 56.1 Statements. Plaintiffs have provided no explanation for their repeated and continued violation of the Rules.

However, Plaintiffs’ Rule 56.1 Statement in support of their motion-which Plaintiffs submitted pursuant to the Court’s October 1 Order-is sufficiently in conformance with Rule 56.1 to allow the Court to consider it in the evidentiary record. Accordingly, the Court will disregard their responses and will consider Defendants’ Rule 56.1 Statements in support of their respective motions as undisputed, except to the extent which Defendants’ Rule 56.1 Statements may be tension with Plaintiffs’ Rule 56.1 Statement.

2. Martin’s September 16, 2021 Affidavit Will Be Set Aside Under the Sham Affidavit Doctrine.

In connection with the instant motions, Martin submits an affidavit (ECF Nos. 129-4; 130-4; 133-1; 134-1, the “Martin Affidavit”)[8] which Defendants ask the Court to set aside as a “sham affidavit” designed to defeat their motions for summary judgment. “[I]f it is clear that an affidavit is offered solely for the purpose of defeating summary judgment, it is proper for the trial judge to conclude that no reasonable jury could accord that affidavit evidentiary weight . . . .” Jiminez v. All Am. Rathskeller, Inc., 503 F.3d 247, 253 (3d Cir. 2007) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (2007) (internal citations omitted). The timing of the affidavit, whether there is a plausible explanation for the contradictory statements, and whether there is independent evidence in the record supporting the affidavit, may be considered when determining whether an affidavit is a sham. See EBC, Inc. v. Clark Bldg. Sys., Inc., 618 F.3d 253, 268-69 (3d Cir. 2010).

There can be no dispute that the Martin Affidavit attests to certain facts that are contrary to those which he testified under oath in prior sworn testimony. Martin’s deposition testimony clearly evidences that he did not read the Release prior to signing the document:

[PLAINTIFFS’ COUNSEL]: Did you read it before you signed it?

[MARTIN]: No, I did not.

Q. [Counsel for HFC] Why didn’t you read it before you signed it?

A. There was about twenty people in line behind me and we were in a press for time to get the events started.

Q. So you didn’t know what you were signing? –

A. At the time I did not know what I was signing and until I just read it just now, I didn’t know what I signed.

Q. You always sign things without knowing what you signed?

A. From time to time apparently, yes.

Q. Well in this – –

A. In this instance, yes, I did not read it.

(Martin Dep. Tr. at 44:3-25.) Martin now certifies that “he did not read the release entirely before [he signed] it” and that he “tried to read [the Release]” prior to signing the document (Martin Aff. ¶¶ 16-17). Acknowledging that this recounting of the facts is at odds with his prior testimony, Martin goes so far as to assert that “[w]hile [during the deposition] I said I did not read it, what I meant was that I couldn’t read the whole thing carefully.” (Martin Aff. ¶ 19.) He further asserts that he “was able to skim it and did read what was big enough and what I could understand.” (Martin Aff. ¶ 20.) Counsels’ questions-including that which Martin’s own counsel posed-during Martin’s deposition were perfectly clear, as were his responses. He did not equivocate in his recollection of the facts and repeated it on multiple occasions during the deposition. This is not a discrepancy which merely relates to the weight of the evidence at issue, and instead is a direct contradiction of his prior testimony. Cf. Jiminez 503 F.3d at 254 (“[C]orroborating evidence may establish that the affidavit was ‘understandably’ mistaken, confused, or not in possession of all the facts during the previous deposition.”). Martin cannot now-well after discovery closed and nearly two and half years after he was deposed-contradict his own testimony to give rise to a dispute of material fact in connection with the Parties’ competing motions. This is plainly improper, and the affidavit will be set aside as a sham affidavit.[9]

3. Plaintiffs’ Submission of an Affidavit by a Forensic Document Examiner is Improper and Will Be Set Aside.

In a similar vein, Plaintiffs submit the affidavit of John Paul Osborn, a forensic document examiner, and accompanying exhibits demonstrating Osborn’s credentials in connection with the motions. (ECF Nos. 129-3; 130-3; 133-2; 134-2, the “Osborn Affidavit”.) This too will be excluded from the Court’s consideration in resolving these motions.

Pursuant to Rule 26(a)(2), “a party must make [expert] disclosures at the times . . . that the court orders.” Fed.R.Civ.P. 26(a)(2)(D). The disclosures must contain: (i) a complete statement of all opinions the witness will express and the basis and reasons for them; (ii) the facts or data considered by the witness in forming them; (iii) any exhibits that will be used to summarize or support them; (iv) the witness’s qualifications, including a list of all publications authored in the previous 10 years; (v) a list of all other cases in which, during the previous 4 years, the witness testified as an expert at trial or by deposition; and (vi) a statement of the compensation to be paid for the study and testimony in the case. Fed.R.Civ.P. 26(a)(2)(B). “Expert disclosure requirements are meant to ensure the playing field remains level, to afford the opposing party an opportunity to challenge the expert’s qualifications and opinions, and to avoid undue prejudice and surprise.” Bouder v. Prudential Fin., Inc., No. CIV.A.06-4359(DMC), 2010 WL 2026707, at *2 (D.N.J. May 21, 2010). Rule 37 of the Federal Rules of Civil Procedure further provides that “[i]f a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.” Fed.R.Civ.P. 37(c)(1).

In evaluating whether a non-disclosure warrants exclusion, the Third Circuit has identified four factors to consider: “(1) the prejudice or surprise of the party against whom the excluded evidence would have been admitted; (2) the ability of the party to cure the prejudice; (3) the extent to which allowing the evidence would disrupt the orderly and efficient trial of the case or other cases in the court; and (4) bad faith or willfulness in failing to comply with a court order or discovery obligation.” Nicholas v. Pa. State Univ., 227 F.3d 133, 148 (3d Cir.2000). The party who has failed to disclose information bears the burden to show that the non-disclosure was substantially justified or is harmless. See D&D Assocs., Inc. v. Bd. of Educ. of N. Plainfield, 2006 WL 1644742, at *4 (D.N.J. June 8, 2006). Ultimately, whether to exclude evidence is left to the trial court’s discretion. Fed.R.Civ.P. 37(c)(1)(A)-(C); Newman v. GHS Osteopathic, Inc., 60 F.3d 153, 156 (3d Cir.1995) (“[T]he imposition of sanctions under Rule 37 is a matter within the discretion of the trial court.”).

On June 25, 2020, Magistrate Judge Waldor entered an Order which granted Defendants’ Motion to Amend/Correct the Answer to the Amended Complaint regarding Defendants’ affirmative defenses relating to the Release. (ECF No. 82.) The Order further “permit any discovery necessary to explore” the defenses. (Id. at 7.) Plaintiffs subsequently retained Osborn on February 26, 2021. (Osborn Aff. at 24.) On June 21, 2021, the Parties reported in a letter to the Court that discovery concerning the Release had been completed. (ECF No. 118.)

Plaintiffs evidently contemplated prior to the June 21 submission that Osborn may proffer a report in connection with this action, yet openly represented to the Court in the June 21 Letter that discovery was complete. Plaintiffs offer no explanation as to why the Court should entertain this untimely submission, let alone do they demonstrate why this delinquency is substantially justified or harmless.

Upon consideration of the factors which the Third Circuit outlined in Nicholas, the Court finds that exclusion of the Osborn Affidavit is warranted. This last-minute disclosure is both prejudicial and a surprise. The Osborn Affidavit was not provided until Defendants were under a deadline to prepare and file their reply brief, and Defendants have had no opportunity to cross-examine the proffered expert’s credentials and statements. Furthermore, allowing Plaintiffs to rely upon the Osborn Affidavit would interfere with the pending motions, and Defendants would be unable to cure such prejudice without the reopening of expert discovery, thus expending additional time, resources and money and further delaying resolution of the motions. See, e.g., Brooks v. Price, 121 Fed.Appx. 961, 965 (3d Cir. 2005). Whether or not Plaintiffs acted in bad faith, these factors are sufficient to warrant the exclusion of the Osborn Affidavit.[10]

B. The Release Does Not Violate the New Jersey Plain Language Review Act

New Jersey sets forth certain guidelines regarding consumer contracts-such as the Release-under the Plain Language Review Act (“PLRA”), N.J.S.A. 56:12. Section 2 of the PLRA requires that a consumer contract “shall be written in a simple, clear, understandable and easily readable way.” N.J.S.A. 56:12-2. The PLRA is designed so that consumer contracts “use plain language that is commonly understood by the wide swath of people who comprise the consuming public.” Kernahan v. Home Warranty Adm’r of Florida, Inc., 236 N.J. 301, 321 (2019). “With such protections in place . . . ‘[a] party who enters into a contract in writing, without any fraud or imposition being practiced upon him, is conclusively presumed to understand and assent to its terms and legal effect.'” Id. (citing Rudbart v. N. Jersey Dist. Water Supply Comm’n, 127 N.J. 344, 353 (1992) (internal citation omitted)).

According to the PLRA, “[a] creditor, seller, insurer or lessor who fails to comply with section 2 of this act shall be liable to a consumer who is a party to the consumer contract for actual damages sustained, if the violation caused the consumer to be substantially confused about the rights, obligations or remedies of the contract . . .” N.J.S.A. 56:12-3. The statute sets forth six non-exclusive factors that a court “may consider” in its determination of whether a consumer contract is “clear, understandable and easily readable, ” including:

(1) Cross references that are confusing;

(2) Sentences that are of greater length than necessary;

(3) Sentences that contain double negatives and exceptions to exceptions;

(4) Sentences and sections that are in a confusing or illogical order;

(5) The use of words with obsolete meanings or words that differ in their legal meaning from their common ordinary meaning;

(6) Frequent use of Old English and Middle English words and Latin and French phrases.

N.J.S.A. 56:12-10. Furthermore, the PLRA provides that “[c]onditions and exceptions to the main promise of the agreement shall be given equal prominence with the main promise, and shall be in at least 10 point type.” Id. The Court maintains broad discretion in its determination of how much consideration should be given to the factors individually and collectively. Boddy v. Cigna Prop. & Cas. Companies, 334 N.J.Super. 649, 655 (App. Div. 2000).

Plaintiffs contend that the Release runs afoul of the PLRA in numerous ways and, accordingly, that the Release must be set aside on statutory grounds. Primary among these arguments is Plaintiffs’ contention that the font size in the Release does not meet the requirement that it be “in at least 10 point type.” (Pls.’ Mot at 16.)[11] Plaintiffs further allege that the Release is in violation of the PLRA because it contains: (i) confusing cross references; (ii) sentences of greater length than necessary; (iii) sentences with double negatives and exceptions to exceptions; (iv) sentences and sections that are in confusing or illogical order; (v) the use of words with obsolete meaning or words that differ in their legal meaning from their common ordinary meaning; (vi) sections that are not logically divided and captioned; and (vii) conditions and exceptions to the main promise of the agreement do not have equal prominence. (Pls.’ Mot. at 17.)

Apart from Plaintiffs’ challenge to the font size found within the relevant language of the Release, Plaintiffs’ complaints amount to a mere recitation of the PLRA factors and Plaintiffs fail to establish how these other factors weigh in their favor. Indeed, upon the Court’s review of the Release, it finds that none of these elements exist within the Release.[12]

Even accepting that the font size may be smaller than the 10-point font guideline outlined in the PLRA, the waiver provision in this case is no less prominent than the remainder of the agreement: The document itself is entitled “SHOOTING SCHOOL AT HUDSON FARM – RELEASE & HOLD HARMLESS AGREEMENT, ” the waiver provision constitutes Section I of the Release, critical elements of the waiver provision are bolded and capitalized, and the font size of the waiver provision is similar to the font used throughout the one-page document. The fact that the font size of the relevant language may be marginally smaller than the statutory guidelines does not violate the mandate that the Release be “simple, clear, understandable and easily readable.” See, e.g., Kang v. La Fitness, 2016 WL 7476354, at *10 (D.N.J. Dec. 29, 2016) (finding the waiver provision in the relevant exculpatory clause was no less prominent than the remainder of the agreement where the font throughout the document was “about size 8”).[13]

In any event, all of Plaintiffs’ complaints are academic: Martin could not have been confused by the Release because he never read it. Inherent in any violation of the PLRA is that a contract that is not “clear, understandable and easily readable” must “cause[]” a consumer’s “substantial confusion” regarding the contents of the contract. N.J.S.A. 56:12-3 (emphasis added); see, e.g., Sauro v. L.A. Fitness Int’l, LLC, No. 12-3682, 2013 WL 97880, at *12 (D.N.J. Feb. 13, 2013) (citing Bosland v. Warnock Dodge. Inc., 396 N.J.Super. 267, 279 (App. Div. 2007), aff’d on other grounds, 197 N.J. 543 (2009)) (“New Jersey courts have held that a . . . plaintiff must allege that she was ‘substantially confused’ about the contract’s terms, as ‘substantial confusion’ is ‘a requirement of the Plain Language Act.'”). Accordingly, the Release could not have served to “substantially confuse” Plaintiff, and his challenge under the PLRA must fail as a matter of law.

C. The Release is Unenforceable Against Plaintiffs.

As a general and long-standing matter, contracting parties are afforded the liberty to bind themselves as they see fit. See Twin City Pipe Line Co. v. Harding Glass Co., 283 U.S. 353, 356 (1931); Walters v. YMCA, 437 N.J.Super. 111, 117-18 (App. Div. 2014) (“The Court must give ‘due deference to the freedom to contract and the right of competent adults to bind themselves as they see fit.'”). However, certain categories of substantive contracts, including those that contain exculpatory clauses, are disfavored and thus have been subjected to close judicial scrutiny. See Stelluti v. Casapenn Enterprises, LLC, 203 N.J. 286, 303 (2010) (citing 11 Williston on Contracts, § 30:9, at 103-04). New Jersey courts have identified four considerations pertinent to the enforcement of an exculpatory agreement, advising that such an agreement:

will be enforced if (1) it does not adversely affect the public interest; (2) the exculpated party is not under a legal duty to perform; (3) it does not involve a public utility or common carrier; or (4) the contract does not grow out of unequal bargaining power or is otherwise unconscionable.

Id. at 304 (quoting Gershon, Adm’x Ad Prosequendum for Est. of Pietroluongo v. Regency Diving Ctr., Inc., 368 N.J.Super. 237, 248 (App. Div. 2004)).[14]

1. The Release is Inimical to the Public Interest as Applied to Plaintiffs’ Claims

The common law imposes a duty of care on business owners to maintain a safe premises for their business invitees because the law recognizes that an owner is in the best position to prevent harm. Id. at 306 (“[B]usiness establishments in New Jersey have well-established duties of care to patrons that come upon their premises.”). In light of this duty, “[t]he law does not favor exculpatory agreements because they encourage a lack of care.” Gershon, 368 N.J.Super. At 247. But “public policy does not demand a per se ban against enforcement of an exculpatory agreement based on the mere existence of a duty recognized in the common law in respect of premises liability.” Stelluti, 203 N.J. at 306. “[T]he law recognizes that for certain activities conducted by operation of some types of business, particularly those that pose inherent risks to the participant, the business entity will not be held liable for injuries sustained so long as [the business] has acted in accordance with ‘the ordinary duty owed to business invitees, including exercise of care commensurate with the nature of the risk, foreseeability of injury, and fairness in the circumstances.'” Id. at 307 (quoting Hojnowski v. Vans Skate Park, 187 N.J. 323, 340-41 (2006)). For example, “[w]hen it comes to physical activities in the nature of sports-physical exertion associated with physical training, exercise, and the like-injuries are not an unexpected, unforeseeable result of such strenuous activity.” Id.

Defendants cite Justice LaVecchia’s dissent in Hojnowski to argue that “recreational activities such as skateboarding do not implicate the public interest” and therefore clay shooting- itself a recreational activity-cannot implicate the public interest. (HFC Opp. at 14-15.) Defendants’ position would result in a per se enforcement of unbounded waivers of liability in the context of recreational activities, which is plainly contrary to New Jersey jurisprudence. As the Stelluti court acknowledged, there remains a standard for liability even in contact recreational sports. Id. at 311 (“[T]here is also a limit to the protections that a private fitness center reasonably may exact from its patrons through the mechanism of an exculpatory agreement.”). In particular, Stelluti requires that business owners be held “to a standard of care congruent with the nature of their business.” Id. at 312.

The scope of the liability that may be waived in connection with recreational activities was explored in Walters. 437 N.J.Super. 111. There, the Appellate Division considered the enforceability of an exculpatory agreement where a patron at a fitness club sued the club for personal injuries he sustained when he slipped and fell on an allegedly negligently maintained stair tread leading to club’s pool. Id. at 118-19. The hold harmless provision within the patron’s membership agreement released the club for injuries sustained by the patron “WHILE ON ANY YMWCA PREMISES OR AS A RESULT OF A YMWCA SPONSORED ACTIVITIES [SIC].” Id. at 116 (emphasis in original). In refusing to enforce the broader clause of the exculpatory agreement-concerning injuries sustained “while on any YMWCA premises”-the Appellate Division found that “if applied literally, [the clause] would eviscerate the common law duty of care owed by defendant to its invitees, regardless of the nature of the business activity involved.” Id. at 118-19. This, the Walters panel continued, “would be inimical to the public interest because it would transfer the redress of civil wrongs from the responsible tortfeasor to either the innocent injured party or to society at large, in the form of taxpayer-supported institutions.” Id. at 119. While the court refused to enforce this broader reading of the exculpatory agreement, it still proceeded to consider whether the patron’s injury fell within the ambit of the narrower exculpatory clause. Id. at 120 (finding that an accident resulting from slipping on the steps leading into the pool did not occur while the plaintiff was “using the pool” and thus was not a “sponsored activit[y]” covered by the exculpatory agreement.).

Similar to the waiver at issue in Walters, if the terms of the Release are applied literally- to “any activity” on the property-Defendants would be released from any claim arising while an invitee was on the property “regardless of the nature of the business activity involved.” Id. at 118- 19.[15] Such a broad waiver of liability then constitutes an exculpatory agreement that is “inimical to the public interest.” Id. at 119.

While the literal reading of the Release cannot be sustained, Defendants are free to craft a release with regard “to a standard of care congruent with the nature of their business.” Stelluti, 203 N.J. at 312. To that end, other exculpatory clauses within the Release are tailored to the nature of Defendants’ business insofar as they limit the release to firearm-related activities. (See Release (“In return for the use of the premises and equipment, I agree to indemnify [Defendants] from and against any and all claims . . . arising out of, related to, or connected with the rental of a firearm, instruction, use or discharge of firearms;” “I hereby further agree . . . that I will not make any claim or institute any suit . . . directly or indirectly to my use of the firearm referenced in this document . . .;” or “I expressly assume the risk of taking part in the activities on the premises, which include the discharge of firearms and firing of live ammunition.”).) The question thus becomes whether Martin’s injury occurred in connection with a firearm-related activity.[16]

New Jersey courts narrowly construe exculpatory waivers in light of Stelluti‘s admonition that they are disfavored. Walters, 437 N.J.Super. at 328 (“Any ambiguities in language about the scope of an exculpatory agreement’s coverage, or doubts about its enforceability, should be resolved in favor of holding a tortfeasor accountable.”). Courts will enforce an exculpatory clause where a claim is “not an unexpected, unforeseeable result of” the risky activity offered by a facility. Stelluti, 203 N.J. at 307; see, e.g., Pulice v. Green Brook Sports, 2017 WL 3013086 (N.J.Super.Ct.App.Div. July 17, 2017) (finding a fitness club’s release enforceable as to plaintiff when a ten-pound dumbbell fell on her face as her trainer handed it to her to perform an exercise); Skarbnik v. Life Time Fitness, Inc., 2021 WL 3923270, at *4 (N.J.Super.Ct.App.Div. Sept. 2, 2021) (upholding fitness club’s release where plaintiff slipped on sweat immediately following a hot yoga class, because sweat on the floor “was a natural consequence” of the activity); Kyung Pak v. N.J. Fitness Factory, Inc., No. A-5084-16T2, 2018 WL 1865462, at *1 (N.J.Super.Ct.App.Div. Apr. 19, 2018) (release enforced when a fitness club employee directed plaintiff to step onto a running treadmill during an exercise class); Kang, 2016 WL 7476354, at *10 (release enforced where plaintiff injured while using a fitness machine). By contrast, New Jersey courts will set aside exculpatory clauses where a potential claim arises from an activity that is not squarely within the ambit of the risky activity offered by an establishment. See, e.g., Walters, 437 N.J.Super. at 111 (accident resulting from slipping on the steps leading into the facility’s pool not considered a “sponsored activity” subject to the release); Crossing-Lyons v. Towns Sports Int’l, Inc., 2017 WL 2953388, at *1 (N.J.Super.Ct.App.Div. July 11, 2017) (release inapplicable where plaintiff tripped over a weight belt left on the floor, an “incident[] that could have occurred in any business setting”); see also Martinez-Santiago v. Public Storage, 38 F.Supp.3d 500 (D.N.J. 2014) (refusing to enforce exculpatory agreement where patron sustained slip-and-fall injuries on ice on a walkway at a self-storage facility).

Defendants contend that “transportation while at HFC” constitutes an activity associated with sporting clay shooting, and the injury occurred within the scope of the Release. (E.g. HFC Mot. at 14.) In making this argument, Defendants analogize sporting clay shooting to golf, with G&H contending that transportation by way of a tractor and wagon is “similar to a golf event” insofar as it was “necessary so that the participants could stagger their starting locations. ((G&H Mot. at 6.) (“To find that attending a sporting clay event does not include transportation from one station to the next is like finding that playing golf does not start until golfers tee off, ends as soon as they retrieve their balls from the cup, and does not begin again until they tee off, and so on. Sporting clay shooting, like playing golf, includes all of the activities associated with attendance at the event, including transportation throughout the course.”).) These arguments “ignore[] the cause of the accident.” Walters, 437 N.J.Super. at 120. Here, the “inherent risky nature” of Defendants’ firearm business was immaterial to the injury Martin suffered. Martin’s injury occurred while he was being transported in a tractor-pulled wagon to his starting shooting location. The Release, while clearly referring to various elements of using a firearm-such as the “rental, instruction, [or] use . . . of firearms” and “discharge of firearms and firing of live ammunition”- does not self-evidently concern transportation while on the property.[17] Much like the Appellate Division’s refusal to consider “an accident resulting from slipping on the steps leading into the pool . . . covered under the ‘activities’ part of” the release clause in Walters, Plaintiffs claims do not arise in connection with the activities involved with using a firearm. 437 N.J.Super. at 111. Instead, Plaintiffs’ claims are more akin to a “garden variety” personal injury action. Id. Accordingly, the exculpatory clause of the Release is void and unenforceable as to Plaintiffs’ claims.[18]

2. Even if the Release Applied to the Wagon Ride, Disputes Over Material Facts Would Preclude Summary Judgment.

Even if the Court accepted that transportation to the shooting range is covered under the Release, the application of the final factor relevant to the enforcement of an exculpatory clause under New Jersey law-that the contract does not grow out of unequal bargaining power or is otherwise unconscionable-gives rise to a dispute of material facts. Gershon, 368 N.J.Super. at 248. “Procedural unconscionability requires examination of ‘unfairness in the formation of the contract’ while substantive unconscionability considers whether the contract’s terms are ‘excessively disproportionate.” Marcinczyk v. State of New Jersey Police Training Com’n, 406 N.J.Super. 608 (2009). In ascertaining whether a contract is unconscionable, these substantive and procedural aspects are subjected to a sliding-scale analysis. Delta Funding Corp. v. Harris, 189 N.J. 28, 40 (2006).

Plaintiffs assert that the Release is substantively unconscionable insofar as it should “shock the Court’s conscience” that “Defendants sought to release themselves from all responsibility to paying guests at their business.” (Mot. at 31.) Courts routinely uphold exculpatory releases, particularly concerning recreational activities, and Plaintiffs offer no meaningful argument as to how the Release departs from other exculpatory releases in such a manner as to shock the conscience.

Similarly, many of Plaintiffs’ arguments underlying their claim of procedural unconscionability fall flat. As previously noted, the purpose of the PLRA is to enable the courts to “confidently state that, even in the consumer context, ‘[a] party who enters into a contract in writing, without any fraud or imposition being practiced upon him, is conclusively presumed to understand and assent to its terms and legal effect.'” Kernahan v. Home Warranty Adm’r of Florida, Inc., 236 N.J. 301, 321, 199 A.3d 766 (2019). Among other things, Plaintiffs argue that (i) Martin’s “lack of education and sophistication rendered him unable” to enter into the release; (ii) the Release was not negotiated personally by Martin; and (iii) he lacked representation by counsel.[19] Setting aside the impracticalities that would result if the Court accepted Plaintiffs’ arguments, Plaintiffs’ primary authority in support of these arguments, O’Brien v. Star Gas Propane, L.P., 2006 WL 2008716 (App. Div. 2006), concerning whether a union-represented employee knowingly released certain discrimination claims against his employer, does not translate to the consumer contract context.[20]

However, Plaintiffs contend that Martin had a limited opportunity to review and consider the Release prior to assenting to its terms. When asked at his deposition why he failed to read the Release, Martin testified that “there was about twenty people in line behind me and we were n a press for time to get the events started.” (Martin Dep. Tr. 44:6-10.) And, when asked whether he saw any other individual sign the Release, Martin testified that “it was very, very rushed . . . [s]o there was no time, they was like — they were like ‘we need to get to the shooting location’ . . . .” (Martin Dep. Tr. 172:14-173:2.) At this juncture, even if the Release was enforceable as to Plaintiffs’ claims, there remains a question of material fact regarding whether Martin had a meaningful opportunity to review the agreement. See Delta Funding Corp., 189 N.J. at 40 (acknowledging that plaintiff alleged facts which suggested “a high level of procedural unconscionability” where signatory was “rushed” into signing the papers); Miller v. Miller, 160 N.J. 408, 419 (1999) (considering whether plaintiff was “rushed into signing” an agreement in determining that the agreement was unconscionable).

III. Conclusion

For the reasons set forth above, Plaintiffs have demonstrated that they are entitled to summary judgment regarding Defendants’ affirmative defenses of release and waiver, pursuant to Federal Rule of Civil Procedure 56(a). Defendants’ motions for summary judgment regarding those same affirmative defenses are denied. An appropriate Order will issue.

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Notes:

[1] Unless otherwise specified, references to “Martin” in this Opinion concern David Martin.

[2] As relevant to the instant motions, and as discussed further infra at Section II.A, the following papers and their attendant exhibits establish the evidentiary record:

• In connection with Plaintiffs’ Motion (“Pls.’ Mot.”) (ECF No. 124), Plaintiffs submitted a Rule 56.1 Statement (“Pls.’ 56.1 Statement”) (ECF No. 139), the HFC Defendants submitted a Response to Plaintiffs’ Rule 56.1 Statement (“HFC’s 56.1 Response In Opp.”) (ECF No. 143), and the G&H Defendants submitted a Response to Plaintiffs’ Rule 56.1 Statement (“G&H’s 56.1 Response In Opp.”) (ECF No. 144).

• In connection with the HFC Defendants’ Motion for Summary Judgment (“HFC Mot.”) (ECF No. 122), the HFC Defendants submitted a Rule 56.1 Statement (“HFC’s 56.1 Statement”) (ECF No. 122-2).

• In connection with the G&H Defendants’ Motion for Summary Judgment (“G&H Mot.”) (ECF No. 123), the G&H Defendants submitted a Rule 56.1 Statement (“G&H’s 56.1 Statement”) (ECF No. 123-2).

[3] These include, among other things, that a signatory certify that he or she (1) has “never been convicted of a crime, ” (2) has “not consumed alcohol in the last 12 hours and [is] not under the influence of any prescription or other drug or substance that would affect my ability to safely handle a firearm, ” and (3) “know[s] of no reason(s) why [their] possession of a firearm would not be in the interest of public health, safety, or welfare.”

[4] In connection with the instant motions, Martin submits an affidavit attesting that he did in fact read the release. (See Affidavit of David Martin (ECF No. 129-4) ¶¶ 16-20). For the reasons discussed, infra at II.A.2, the affidavit and all attendant facts will be set aside as a sham affidavit.

[5] On July 1, 2021, Magistrate Judge Waldor adopted a briefing schedule proposed by the Parties and ordered that the Parties file “any motions regarding the Release and Hold Harmless Agreement” pursuant to that schedule. (ECF No. 124.)

[6] Indeed, the Rules do not contemplate that a nonmovant will submit a statement of “undisputed” material facts. Instead, the nonmovant may furnish a “supplemental statement of disputed material facts, ” to which the movant shall reply. L. R. 56.1(a)

[7] As just one example, Mr. Engle attests: “Certainly we know from Mr. Martin’s affidavit that he did not read Section 1 and instead skimmed over it precisely because it was ‘too small and dense.’ Whether this was a reasonable thing to do, given the fact that it was in 9-point font, is a jury question.” (ECF No. 129 ¶ 10.) Such a statement is far from an “undisputed fact, ” nor does it follow the plain requirements of Local Rule 56.1(a).

[8] While the Martin Affidavit was submitted on multiple occasions in connection with the various motions, each submission is identical and the Court will refer to it as a single document.

[9] Counsel for the HFC Defendants assert that Plaintiffs should be sanctioned for submitting this sham affidavit. (HFC Opp. at 7.) To the extent that this request is more than mere bluster, it must be made as its own motion and pursuant to Rule 11 of the Federal Rules of Civil Procedure.

[10] As the Court has concluded exclusion is proper, there is no need to reach Defendants’ substantive objections to the Osborn Report. In any event, for reasons discussed infra, the Court’s consideration of the Report’s contents would not change the conclusion that the Release did not violate the PLRA.

[11] Relying on the deposition testimony of Laurel Auriemma, G&H’s Compliance Officer, Plaintiffs contend that most of the text in Section 1 of the Release is 9-point Times New Roman, the sole exception being the statement “I HAVE CAREFULLY READ THIS AGREEMENT AND FULLY UNDERSTAND THE CONTENTS, ” found at the bottom of Section 1 of the Release, which Plaintiffs claim is in 8-point Times New Roman. (Pls.’ 56.1 Statement ¶¶ 12, 13, 15, 16.) Defendants object to these statements as mischaracterizations of Ms. Auriemma’s testimony, and instead (correctly) claim that Ms. Auriemma’s testimony concerned the font size of a Microsoft Word version of the Release she had in her possession- rather than the signed Release. (HFC’s 56.1 Response In Opp ¶¶ 12, 13, 15, 16; G&H 56.1 Response In Opp ¶¶ 12, 13, 15, 16.) While the record does not establish an undisputed determination of the relevant language’s font size, even when the Court credits Plaintiffs’ accounting of the facts, their challenge to the language under the PLRA fails for the reasons that follow.

[12] Plaintiffs also contend that “Mr. Martin’s affidavit alone creates several N.J.S.A. 56:12(1-6) issues of fact.” (Pls.’ Mot at 14.) For reasons previously discussed, the Court will not credit the Martin Affidavit. See supra at II.A.2.

[13] Plaintiffs’ reliance on Kernahan and Rockel v. Cherry Hill Dodge, 368 N.J.Super. 577 (App. Div. 2004), is misplaced. To the extent the court in Kernahan considered the 6.5-point font size of the relevant language in the 5-page contract, it was one of several factors-also including a “confusing sentence order” and “misleading caption”-weighing in favor of finding it unenforceable. 236 N.J. at 326. Furthermore, the Kernahan decision focused predominantly on the heightened requirements underlying the enforcement of arbitration provisions, an issue not present here. Id. at 301-326 (citing Atalese v. U.S. Legal Servs. Grp., L.P., 219 N.J. 430 (2014)).

Meanwhile, while the court in Rockel acknowledged that “[t]he size of the print and the location of the arbitration provision in a contract has great relevance to any determination to compel arbitration, ” its decision relied largely on the presence of two conflicting arbitration provisions. 368 N.J.Super. at 585. Indeed, the court in Rockel did not consider any challenge to the language under the PLRA.

[14] The third factor is inapplicable here because Defendants are neither public utilities nor common carriers.

[15] To underscore this point, John Ursin, G&H’s attorney and a principal drafter of the Release, during his deposition was asked whether the language was meant to “include every possible accident on the activity.” (Ursin Dep. Tr. 27:15-23.) While he declared that this would be an “overstatement, ” he only offered the hypothetical the Release was not intended to disclaim liability “if . . . there was a plane crash on the property.” (Id.) To limit Defendants’ liabilities under the exculpatory to acts of god would “eviscerate” the duty of care they have to their patrons. Cf. Walters, 437 N.J.Super. at 118-19.

[16] Plaintiffs argue unconvincingly that, because the Release does not contain a severability clause, the Release must be voided as a whole. Here, striking the unenforceable portions of the Release still “leaves behind a clear residue that is manifestly consistent with the ‘central purpose’ of the contracting parties, and that is capable of enforcement.” Jacob v. Norris, McLaughlin & Marcus, 128 N.J. 10, 33 (1992).

[17] Further to their proposed analogy between transportation during sporting clay shooting to the rental of golf carts in connection with a golf tournament, Defendants offer Post v. Belmont Country Club, Inc., 60 Mass.App.Ct. 645 (2004) as support for their argument that injuries during transportation should be covered within the Release. However, in Post, the relevant exculpatory clause in the golf membership handbook expressly included transportation on the golf court, id. at 646, and applied Massachusetts’ more permissive rules with respect to exculpatory agreements, id. at 651 (refusing to require “strict construction” of the relevant exculpatory clause when asked to apply other states’ rules of construction).

[18] Plaintiffs also argue, unpersuasively, that the Release violates Defendants’ statutory duties imposed upon them under New Jersey Code of Criminal Justice, Title 2C Section 2C:58-3.1. Under 2C:58-3.1, a legal owner of a handgun, rifle or shotgun may temporarily transfer the firearm to a person who is 18 years of age or older, if the transfer is made upon a firing range “for the sole purpose of target practice, trap or skeet shooting, or competition upon that firing range.” Upon the transfer, “[t]he firearm shall be handled and used by the person to whom it is temporarily transferred only in the actual presence or under the direct supervision of the legal owner of the firearm.” Id. Plaintiffs make no claim that any injury was the result of a failure to supervise him upon the transfer of a firearm, and Martin has acknowledged that he was not in possession of a firearm during the wagon ride at issue. (Martin Dep. Tr. 51 5-12.)

[19] The Release, which Defendants presented on a take-it-or-leave-it basis, in a standardized printed form, and without opportunity for the Martin to negotiate, is a contract of adhesion. Gamble v. Connolly, 399 N.J.Super. 130, 142 (2007) (A contract of adhesion means “‘a contract where one party must accept or reject the contract.'”). However, “‘the determination that a contract is one of adhesion is the beginning, not the end, of the inquiry into whether a contract…should be deemed unenforceable based on policy considerations.'” Id. “When making the determination that a contract of adhesion is unconscionable and unenforceable, [the court] consider[s], using a sliding scale analysis, the way in which the contract was formed and, further, whether enforcement of the contract implicates matters of public interest.” Stelluti, 203 N.J. at 301 (citing Delta Funding, 189 NJ. at 39-40).

[20] Plaintiffs also argue that the “language of the release was technical and cumbersome” and “[i]ts sentences were overly long and difficult to understand.” (Pls.’ Opp, to HFC Mot. at 24; Pls.’ Opp to G&H Mot. at 27.) These arguments fail for reasons already discussed. See supra at II.B.

———


Kang v. LA Fitness, 2016 U.S. Dist. LEXIS 179934, 2016 WL 7476354

Kang v. LA Fitness, 2016 U.S. Dist. LEXIS 179934, 2016 WL 7476354

Soon Ja Kang Plaintiff,

LA Fitness, LA Fitness of South Plainfield, John Does 1-5, et al., Defendants.

Civil No. 2:14-cv-07147 (KSH) (CLW)

United States District Court, D. New Jersey

December 29, 2016

NOT FOR PUBLICATION

OPINION

Katharine S. Hayden, U.S.D.J.

Before the Court is defendants’ motion for summary judgment as to the validity and enforceability of an exculpatory clause in a fitness center membership agreement with plaintiff. For the reasons set forth below, the Court finds the liability waiver to be valid and enforceable and defendants’ motion is granted.

I. Background

Fitness International, LLC d/b/a LA Fitness (incorrectly designated as LA Fitness of South Plainfield) (“LA Fitness”) operates a fitness facility located in Piscataway, NJ. See Final Pretrial Order Stipulation of Facts (“SOF”) (D.E. 19), at ¶ 1. On December 30, 2013, plaintiff Soon Ja Kang went to LA Fitness with her husband to sign up for membership. Id. at ¶ 2. The membership agreement she signed states in relevant part:

IMPORTANT: RELEASE AND WAIVER OF LIABILITY AND INDEMNITY. You hereby acknowledge and agree that use by Member and/or Member’s minor children of LA Fitness’ facilities, services, equipment or premises, involves risks of injury to persons and property, including those described below, and Member assumes full responsibility for such risks. In consideration of Member and Member’s minor children being permitted to enter any facility of LA Fitness (a “Club”) for any purpose including, but not limited to, observation, use of facilities, services or equipment, or participation in any way, Member agrees to the following: Member hereby releases and holds LA Fitness, its directors, officers, employees, and agents harmless from all liability to Member, Member’s children and Member’s personal representatives, assigns, heirs, and next of kin for any loss or damage, and forever gives up any claim or demands therefore, on account of injury to Member’s person or property, including injury leading to the death of Member, whether caused by the active or passive negligence of LA Fitness or otherwise, to the fullest extent permitted by law, while Member or Member’s minor children are in, upon, or about LA Fitness’ premises or using any LA Fitness facilities, services or equipment. Member also hereby agrees to indemnify LA Fitness from any loss, liability, damage or cost LA Fitness may incur due to the presence of Member or Member’s children in, upon or about the LA Fitness premises or in any way observing or using any facilities or equipment of LA Fitness whether caused by the negligence of Member(s) or otherwise. You represent (a) that Member and Member’s minor children are in good physical condition and have no disability, illness, or other condition that could prevent Member(s) from exercising without injury or impairment of health, and (b) that Member has consulted a physician concerning an exercise program that will not risk injury to Member or impairment of Member’s health. Such risk of injury includes (but is not limited to): injuries arising from use by Member or others of exercise equipment and machines; injuries arising from participation by Member or others in supervised or unsupervised activities or programs at a Club; injuries and medical disorders arising from exercising at a Club such as heart attacks, strokes, heat stress, sprains, broken bones, and torn muscles and ligaments, among others; and accidental injuries occurring anywhere in Club dressing rooms, showers and other facilities. Member further expressly agrees that the foregoing release, waiver and indemnity agreement is intended to be as broad and inclusive as is permitted by the law of the State of New Jersey and that if any portion thereof is held invalid, it is agreed that the balance shall, notwithstanding, continue in full force and effect. Member has read this release and waiver of liability and indemnity clause, and agrees that no oral representations, statements or inducement apart from this Agreement has been made.

LA Fitness Moving Br., Exh. E (D.E. 22-7).

Kang and her husband do not read or understand English, but their daughter was present to translate for them when they signed up. See SOF, at ¶¶ 4-5. Kang signed a membership agreement. She did not initial next to the waiver and liability provision in her membership agreement; however, her husband was asked to initial next to the same provision in his membership agreement, and he did so. Id. at ¶ 6.

On December 31, 2013, Kang was injured while working out on a chin/dip assist pull up machine at LA Fitness’s Piscataway location. See SOF, at ¶¶ 2, 7. She filed the instant action on September 29, 2014 in state court, and LA Fitness filed a notice of removal in this Court on November 14, 2014 on the basis of diversity jurisdiction (D.E. 1). The complaint alleges that Kang was injured as a result of negligence on the part of LA Fitness. Id. Prior to completion of expert discovery, LA Fitness moved for summary judgment on the issue of whether the waiver and liability provision bars the instant action. The motion was fully briefed. (D.E. 22, 25, 26).

The Court makes its decision on the paper.

II. Discussion

A. Standard

Summary judgment is warranted where the moving party 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), (c). The parties have conducted discovery on the circumstances surrounding the formation of Kang’s membership agreement and, as set forth in the analysis below, all facts relevant to the enforceability of the waiver provision are essentially undisputed as set forth in the Final Pretrial Order Stipulation of Facts (D.E. 19). In determining whether the waiver provision is enforceable as a matter of law, the Court “view[s] the evidence in the light most favorable to [Kang] and draw[s] all justifiable, reasonable inferences in [her] favor.” Sgro v. Bloomberg L.P., 331 F.Appx. 932, 937 (3d Cir. 2009).

B. Analysis

Pursuant to the release and waiver of liability provision in her membership agreement, Kang released and held LA Fitness harmless for all injuries she might suffer “whether caused by the active or passive negligence of LA Fitness or otherwise, ” while she was “in, upon, or about LA Fitness’ premises or using any LA Fitness facilities, services or equipment.” LA Fitness Moving Br., Exh. E (D.E. 22-7). As her negligence claim for an injury allegedly sustained while using a piece of workout equipment at an LA Fitness facility clearly falls within the ambit of the liability waiver, the issue becomes whether the waiver itself is enforceable against Kang on the facts of this case.

In Stelluti v. Casapenn Enterprises, LLC, 408 N.J.Super. 435, 454 (App. Div. 2009), aff’d, 203 N.J. 286 (2010), the New Jersey Appellate Division addressed the enforceability of exculpatory releases in fitness center membership agreements:

Such a release is enforceable only if: (1) it does not adversely affect the public interest; (2) the exculpated party is not under a legal duty to perform; (3) it does not involve a public utility or common carrier; or (4) the contract does not grow out of unequal bargaining power or is otherwise unconscionable.

Id. The third factor is inapplicable here, because LA Fitness is not a public utility or common carrier. See Kang Opp. Br., at p. 6. The Court analyzes the remaining Stelluti factors in turn.

1. Does the Exculpatory Clause Adversely Affect the Public Interest?

LA Fitness argues that the exculpatory clause in this case does not adversely affect the public interest because it is “a facility that encourages New Jersey’s public policy promoting physical fitness.” LA Fitness Moving Br., at p. 6. Noting the important policy objective of promoting public health, the Stelutti court held:

[W]e are satisfied that, at least with respect to equipment being used at the club in the course of an exercise class or other athletic activity, the exculpatory agreement’s disclaimer of liability for ordinary negligence is reasonable and not offensive to public policy.

Stelluti, 408 N.J.Super. at 459. The Court agrees with the analysis in Stelluti and finds that the exculpatory clause here does not adversely affect the public interest, at least to the extent that it purports to exculpate LA Fitness with respect to acts or omissions amounting to ordinary negligence.

Kang argues that public policy promoting physical fitness “cannot counteract the other public policy reasons that are in place to protect against improper liability waivers.” Kang Opp. Br., at p. 7. To that end, she argues that the release in this case violates the New Jersey Plain Language Act, which states that “[a] consumer contract entered into on or after the effective date of this amendatory and supplementary act shall be written in a simple, clear, understandable and easily readable way.” N.J. Stat. Ann. § 56:12-2. Specifically, Kang argues that the small font size and margins in the contract are such that “[s]omeone who can read and understand English would be substantially confused by this agreement[.]” Kang Opp. Br., at p. 8.

To determine whether the waiver provision violates the Plain Language Act, the Court turns to the plain language of the act itself. Section 56:12-10 provides:

To insure that a consumer contract shall be simple, clear, understandable and easily readable, the following are examples of guidelines that a court . . . may consider in determining whether a consumer contract as a whole complies with this act:

(1) Cross references that are confusing;

(2) Sentences that are of greater length than necessary;

(3) Sentences that contain double negatives and exceptions to exceptions;

(4) Sentences and sections that are in a confusing or illogical order;

(5) The use of words with obsolete meanings or words that differ in their legal meaning from their common ordinary meaning;

(6) Frequent use of Old English and Middle English words and Latin and French phrases.

N.J. Stat. Ann. § 56:12-10. Section 56:12-10 further provides:

The following are examples of guidelines that a court . . . may consider in determining whether the consumer contract as a whole complies with this act:

(1) Sections shall be logically divided and captioned;

(2) A table of contents or alphabetical index shall be used for all contracts with more than 3, 000 words;

(3) Conditions and exceptions to the main promise of the agreement shall be given equal prominence with the main promise, and shall be in at least 10 point type.

Id. A Court has discretion as to how much consideration should be given to the above-listed statutory guidelines in finding a violation of the act. See Boddy v. Cigna Prop. & Cas. Companies, 334 N.J.Super. 649, 655 (App. Div. 2000).

Reviewing Kang’s membership agreement in light of the above guidelines, the Court finds that the waiver provision does not violate the New Jersey Plain Language Act. The waiver provision does not contain any cross references, nor does it contain any double negatives or exceptions to exceptions. It does not contain words with obsolete meanings, nor is it clouded by the use of Old English, Middle English, Latin or French phrases. And Kang does not argue-nor does the Court find-that the sentences of the waiver provision are set forth in a confusing or illogical order.

Instead, Kang argues that the waiver provision violates the Plain Language Act because “[t]he size of the font (print) is about size 8, whereas the standard size used in everyday documents is size 12[, ]” and because “[t]he margins on the sides of the pages are about 0.5 inch . . . reflecting the intentions of the drafter to squeeze in additional words.” Kang Opp. Br., at p. 8. However, applying the above guidelines, the Court does not find that the waiver provision in this case is any less prominent that the remainder of the agreement. See N.J. Stat. Ann. § 56:12-10b(3). To the contrary, the waiver and liability provision is the only clause in the membership agreement preceded by a title in all caps (“IMPORTANT: RELEASE AND WAIVER OF LIABILITY AND INDEMNITY”), and it is the only clause that is fully enclosed by a border, creating a visual separation between the waiver and the rest of the agreement.

The Court finds that the waiver provision in this case does not offend public policy under Stelluti and does not otherwise violate the New Jersey Plain Language Act.

2. Is LA Fitness Under a Legal Duty To Perform?

LA Fitness argues that its relationship with Kang does not create any duties prescribed by statute or regulation. See LA Fitness Moving Br., at pp. 6-8. New Jersey courts have found liability waivers to be invalid as against public policy where they conflict with legislatively imposed duties. For example, in Hy-Grade Oil Co. v. New Jersey Bank, 138 N.J.Super. 112, 118 (App. Div. 1975), the court found it against public policy for a bank to exculpate itself from liability or responsibility for negligence in the performance of its function as a night depository service, in part due to the “extensive statutory regulations covering every phase of the banking business[.]” Id. at 118. Similarly, in McCarthy v. Nat’l Ass’n for Stock Car Auto Racing, Inc., 48 N.J. 539, 543 (1967), the New Jersey Supreme Court held a liability waiver invalid as against public policy because it purported to contract away safety requirements prescribed by statute dealing with motor vehicle racing. See id. at 543 (“[t]he prescribed safety requirements may not be contracted away, for if they could be the salient protective purposes of the legislation would largely be nullified”).

Kang argues that “although there are no statutes specific to fitness centers, there are several national associations that have established standards that apply to the fitness industry[.]” Kang Opp. Br., at pp. 8-9. However, there is no indication that these national standards apply with the force of law in New Jersey so as to constitute public policy of the state. Kang further argues that the Stelluti court acknowledged the well-established duties of care that New Jersey business owners owe to patrons that enter their premises. See Kang Opp. Br., at p. 8. However, as noted above in Part B.1. supra, Stelluti expressly held that fitness center liability waivers such as the one at issue here do not violate public policy at least to the extent that they exculpate for ordinary negligence. Stelluti, 408 N.J.Super. at 459. The Court finds that LA Fitness is not under any legal duty that precludes its reliance on the liability waiver in this case.

3. Does the Contract Grow Out of Unequal Bargaining Power or is it Otherwise Unconscionable?

With respect to the final Stelluti factor, Kang argues that the waiver: (1) was not the product of mutual assent; and (2) is unconscionable as a term in a contract of adhesion. See Kang Opp. Br., at pp. 10-14. The Court addresses both arguments in turn.

a. Mutual Assent

Kang argues that the waiver was invalid for lack of mutual assent, based upon the following assertions: (1) Neither Kang nor her husband speaks English; (2) LA Fitness knew as much, as the Kangs’ daughter was present to translate; (3) an LA Fitness employee explained the contract duration and payment terms to the Kangs’ daughter, but did not explain the liability waiver to her; (4) only Kang’s husband was asked to initial next to the waiver provision in his membership agreement, but no one explained to him what he was initialing; and (5) no employee went over the waiver provision with Kang or her daughter. See Kang Opp. Br., at pp. 10-11. Accordingly, Kang argues that she did not “clearly, unequivocally, and decisively surrender[ ] her rights” as is required for a valid waiver. Id. at p. 11.

The Court finds these arguments unavailing. As an initial matter, Kang’s inability to speak English does not bar her from becoming contractually bound. Notwithstanding the fact that her daughter was present to translate, New Jersey courts have unequivocally held that in the absence of fraud, one who signs an agreement is conclusively presumed to understand and assent to its terms and legal effect:

In the absence of fraud or imposition, when one fails to read a contract before signing it, the provisions are nevertheless binding, and the party is conclusively presumed to understand and assent to its terms and legal effect . . . . Even illiterate individuals have been held bound by a signed contract in the absence of misrepresentation. One who signs a document in those circumstances should know its contents or have it read (or otherwise have the contents made known) to him or her.

Statewide Realty Co. v. Fid. Mgmt. & Research Co., 259 N.J.Super. 59, 73 (Law. Div. 1992) (internal citations and quotations omitted); see also Herrera v. Twp. of S. Orange Vill., 270 N.J.Super. 417, 423, 637 (App. Div. 1993) (enforcing release agreement in the absence of fraud, notwithstanding testimony by plaintiff that she did not understand the release because she could not read English).

Under the New Jersey case law cited above, absent allegations of fraud, deceit, or misrepresentation which Kang does not make here, she is conclusively presumed to have understood and assented to the membership agreement’s terms-including the waiver-and legal effect. See Stelluti v. Casapenn Enterprises, LLC, 203 N.J. 286, 305 (2010) (“Although Stelluti argues that she did not know what she was signing, she does not claim that she signed the waiver form as the result of fraud, deceit, or misrepresentation. Therefore, the trial court was well within reason to presume that she understood the terms of the agreement . . . and the finding to that effect is unassailable.”)

Nor does the fact that LA Fitness may not have explained the waiver to her or her daughter preclude enforcement. See Stelluti v. Casapenn Enterprises, LLC, 203 N.J. 286, 301- 02 (2010) (enforcing exculpatory clause while giving plaintiff benefit of inference that “Powerhouse may not have explained to Stelluti the legal effect of the contract that released Powerhouse from liability”).

Finally, the Court is not aware of, nor has Kang cited, any requirement that she must have initialed the waiver provision for that clause to be enforceable against her. While she did not initial the waiver provision, she did sign the membership agreement containing it. In the absence of fraud, that is enough to bind her to its terms. See Statewide, 259 N.J.Super. at 73.

b. Unconscionability

Kang also argues that even if the waiver is found to be enforceable, the Court should invalidate it as a contract of adhesion. “[T]he essential nature of a contract of adhesion is that it is presented on a take-it-or-leave-it basis, commonly in a standardized printed form, without the opportunity for the ‘adhering’ party to negotiate except perhaps on a few particulars.” Rudbart v. N. Jersey Dist. Water Supply Comm’n, 127 N.J. 344, 353, 605 A.2d 681, 685 (1992). Kang’s unconscionability argument is essentially an amalgamation of all of her arguments summarized above: that as someone who does not speak English she lacked the sophistication to understand the terms to which she was agreeing, LA Fitness knew that she was in no position to understand those terms, she did not initial next to the waiver provision, the waiver is one-sided and printed on a standard form agreement, and she was not in a position to negotiate the terms of the agreement. Kang Opp. Br., at pp. 12-14.

Notably, not all contracts of adhesion are unenforceable. In Stelluti, the New Jersey Supreme Court held:

Here, Powerhouse’s agreement was a standard pre-printed form presented to Stelluti and other prospective members on a typical ‘take-it-or-leave-it basis.’ No doubt, this agreement was one of adhesion. As for the relative bargaining positions of the parties, . . . we assume that Stelluti was a layperson without any specialized knowledge about contracts generally or exculpatory ones specifically. Giving her the benefit of all inferences from the record, including that Powerhouse may not have explained to Stelluti the legal effect of the contract that released Powerhouse from liability, we nevertheless do not regard her in a classic ‘position of unequal bargaining power’ such that the contract must be voided. As the Appellate Division decision noted, Stelluti could have taken her business to another fitness club, could have found another means of exercise aside from joining a private gym, or could have thought about it and even sought advice before signing up and using the facility’s equipment. No time limitation was imposed on her ability to review and consider whether to sign the agreement. In sum, although the terms of the agreement were presented ‘as is’ to Stelluti, rendering this a fairly typical adhesion contract in its procedural aspects, we hold that the agreement was not void based on any notion of procedural unconscionability.

Stelluti v. Casapenn Enterprises, LLC, 203 N.J. 286, 301-02 (2010).

Like the defendant in Stelluti, Kang was a layperson without any specialized knowledge of exculpatory contracts, and the Court gives her the benefit of the inference that LA Fitness did not explain the legal effect of the waiver provision to her. However, also like the defendant in Stelluti, Kang was not under any undue pressure to execute the agreement and she could have sought advice before signing. Indeed, her daughter was present to translate. As noted above, the fact that Kang does not speak English does have any legal effect on the contract’s enforceability. Thus, in accordance with Stelluti, the Court finds that although the LA Fitness membership agreement may have been offered on a “take-it-or-leave-it” basis, it is not void on the basis of unconscionability.

Because the exculpatory clause does not offend public policy, the Court finds it to be valid and enforceable. Accordingly, LA Fitness’s motion for summary judgment is granted.

III. Conclusion

For the foregoing reasons, defendants’ motion for summary judgment is granted, and the clerk of the court is direct to close this case. An accompanying Order will be filed.


Lynam v. Blue Diamond LLC, 2016 Del. Super. LEXIS 495

Lynam v. Blue Diamond LLC, 2016 Del. Super. LEXIS 495

Thomas A Lynam, III and Antoinette M. Lynam, as Parents and Natural Guardians of Thomas A. Lynam, IV, a minor,

v.

Blue Diamond LLC and Parkway Gravel Inc. and Houghton’s Amusement Park, LLC

C.A. No. N14C-11-121 RRC

Superior Court of Delaware, New Castle

October 4, 2016

Submitted: July 6, 2016

On Defendants Blue Diamond LLC’s and Parkway Gravel, Inc.’s Motion for Judgment on the Pleadings.

Tabatha L. Castro, Esquire The Castro Firm, Inc. Attorney for Plaintiffs

Leonard G. Villari, Esquire Villari, Lentz & Lynam, LLC Attorney Pro Hac Vice for Plaintiffs

Marc S. Casarino, Esquire Dana Spring Monzo, Esquire Nicholas Wynn, Esquire White and Williams, LLP Attorneys for Defendants Blue Diamond LLC and Parkway Gravel, Inc.

Dear Counsel:

I. INTRODUCTION

Pending before this Court is Defendants Blue Diamond LLC’s and Parkway Gravel, Inc.’s (“Defendants”)[1] Motion for Judgment on the Pleadings. In their complaint, Plaintiffs allege that minor Thomas Lynam, IV (“Tommy”) was riding his motocross bicycle on Defendants’ motocross track. After riding off a jump, Tommy landed, lost control of his motocross bicycle, and collided with a metal shipping container near the track. Tommy apparently sustained serious injuries. Plaintiffs’ complaint raises one count of “negligence” as a theory for liability.[2]Although not listed as a separate count in their complaint, Plaintiffs allude in their general “negligence” claim to a theory of reckless conduct by Defendants in connection with the operation of the motocross track.

In their motion, Defendants assert that their alleged behavior was, as a matter of fact and law, neither negligent nor reckless. Alternatively, Defendants raise an affirmative defense that they are released from any liability for negligent or reckless conduct due to a release agreement (the “Release”) signed by the Plaintiffs. Additionally, Defendants raise the doctrine of assumption of the risk as a separate affirmative defense as a bar to recovery.

Plaintiffs agree that they released Defendants from liability for Defendants’ own “negligence.” However, Plaintiffs contend that Defendants’ conduct amounted to recklessness, and that Plaintiffs never released Defendants from liability for their allegedly reckless conduct. In response to Defendants’ claim that Plaintiffs assumed the risk of injury, Plaintiffs contend that the risk of a collision with a metal shipping container was not contemplated at either the signing of the Release or when Tommy began using the facilities.

This Court concludes that the Release was not specifically tailored so as to release Defendants from liability for their allegedly reckless conduct. The Court also finds that the factual record is insufficiently developed to make a legal determination of whether Defendants’ conduct as a matter of law amounted to recklessness. Finally, the Court concludes that it is premature at this juncture to consider Defendant’s affirmative defense. Accordingly, the Court denies Defendants’ Motion for Judgment on the Pleadings.

II.FACTUAL AND PROCEDURAL HISTORY

On January 6, 2013, Tommy, then thirteen years old, was riding a motocross bicycle at Blue Diamond Motocross near New Castle. Plaintiffs allege that the track was advertised as being composed of “safe jumps.”[3] While riding, Tommy rode off a jump, made a hard landing, and was unable to stop in time before colliding with a large metal shipping container.

Prior to granting Tommy admission to the Blue Diamond facilities to ride his motocross bicycle, Blue Diamond required Tommy’s father to sign a release agreement. The Release, entitled “Parental Consent, Release and Waiver of Liability, Assumption of Risk and Indemnity Agreement, ” stated that Plaintiffs understood the “risks and dangers of serious bodily injury” posed by motocross and relieved Defendants from liability for their own negligence.[4] The Release also released Defendants from liability for injuries suffered by Plaintiffs through their own negligence.[5]

In their complaint, Plaintiffs allege that Defendants negligently allowed the container to remain on the premises at an unsafe distance from the motocross track.[6] While Plaintiffs do not specifically allege recklessness as a separate claim for recovery, but rather include it in a single count of “Negligence, ” Plaintiffs’ complaint references reckless conduct as another potential theory of recovery.[7]Plaintiffs, however, now agree that their claims of negligence are barred by the Release.[8] But Plaintiffs assert that the Release did not specifically address or contemplate potential claims against Defendants for “reckless” behavior.[9]

III. ANALYSIS

A. Standard of Review

Under Superior Court Civil Rule 12(c), a party may move for judgment on the pleadings after the pleadings are closed.[10] The standard of review in the context of a motion for judgment on the pleadings requires a court to “accept all the complaint’s well-pleaded facts as true and construe all reasonable inferences in favor of the non-moving party.”[11] “The motion will be granted when no material issues of fact exist, and the moving party is entitled to judgment as a matter of law.”[12] “The standard for a motion for judgment on the pleadings is almost identical to the standard for a motion to dismiss.”[13]

B. The Parties Agree that the Release Bars Plaintiffs’ Recovery Against Defendants for Any Negligence

Defendants contend that the executed Release bars recovery for negligence. At oral argument on this motion, Plaintiffs agreed (Plaintiffs’ filings were not explicit on this point) that the Release bars recovery for injuries resulting from Defendants’ allegedly negligent conduct.[14] Although Plaintiffs are residents of Pennsylvania, the parties agree that Delaware law applies to the present motion, as Defendants are Delaware businesses and the incident giving rise to the case at bar occurred in Delaware.

Under Delaware law, parties may enter into an agreement that relieves a business owner of liability for injuries to business invitees that result from the owner’s negligent conduct.[15] However, the release must be unambiguous, not unconscionable, and not against public policy. [16] Further, the release must be “‘crystal clear and unequivocal’ to insulate a party from liability for possible future negligence.”[17]

In Ketler v. PFPA, LLC, the Delaware Supreme Court recently determined the validity of a release waiving liability for negligence.[18] The release in Ketler provided:

‘I understand and voluntarily accept this risk and agree that [the defendant] . . . will not be liable for any injury, including, without limitation, personal, bodily, or mental injury . . . resulting from the negligence of [the defendant] or anyone on [the defendant’s] behalf whether related to exercise or not. Accordingly, I do hereby forever release and discharge [the defendant] from any and all claims, demands, injuries, damages, actions, or causes of action.'[19]

The Delaware Supreme Court held that the release was sufficiently clear and unequivocal, and that it expressly released the defendant from any and all causes of actions relating to the defendant’s own negligence.[20] Defendants rely heavily on this case, asserting that it applies to claims of reckless conduct.[21]

The Release that Plaintiffs executed in this case is also sufficiently “clear and unequivocal.” The Release provides:

3. I consent to the Minor’s participation in the Event(s) and/or entry into restricted areas and HEREBY ACCEPT AND ASSUME ALL SUCH RISKS, KNOWN AND UNKNOWN, AND ASSUME ALL RESPONSIBILITY FOR THE LOSSES, COSTS, AND/OR DAMAGES FOLLOWING SUCH INJURY, DISABILITY, PARALYSIS OR DEATH, EVEN IF CAUSED, IN WHOLE OR IN PART, BY THE NEGLIGENCE OF THE “RELEASEES” NAMED BELOW.

4. I HEREBY RELEASE, DISCHARGE AND COVENANT NOT TO SUE the . . . track owners, [and] owners and lessees of premises used to conduct the Event(s) . . . all for the purposes herein referred to as “Releasees, ” FROM ALL LIABILITY TO ME, THE MINOR, [and] my and the minor’s personal representatives . . . FOR ANY AND ALL CLAIMS, DEMANDS, LOSSES, OR DAMAGES ON ACCOUNT OF INJRY, including, but not limited to, death or damage to property, CAUSED . . . BY THE NEGLIGENCE OF THE “RELEASEES” OR OTHERWISE.[22]

Similar to the language at issue in Ketler, the Release expressly states that the signor assumes responsibility for injuries caused by Defendants’ own negligent conduct. The release also expressly states that the Defendants are released from any and all causes of action that may arise from Defendants’ negligent conduct. Accordingly, this Court agrees with the parties that the Release validly exculpates Defendants from liability for their own negligence.

Defendants also rely on Lafate v. New Castle County[23] and Devecchio v. Delaware Enduro Riders, Inc.[24] to support their position that the Release waives claims of reckless conduct. Both Lafate and Devecchio concern agreements that released the tortfeasors from liability for their own negligent conduct. Both cases also discussed whether the language of the releases was sufficiently tailored to release the tortfeasor’s negligent conduct. In Lafate, this Court refused to grant the defendant’s motion for summary judgment on grounds that the release did not clearly and unambiguously release the tortfeasor from claims that it was negligent.[25] In Devecchio, this Court granted the defendant’s motion for summary judgment because the plaintiff signed a valid covenant not to sue for injury resulting from the plaintiffs own negligence.[26]

Defendants’ reliance on these cases in light of Plaintiffs’ potential claim of reckless conduct is inapposite. Because the parties have agreed that Defendants are insulated from claims of negligence, the question of whether the release clearly and unambiguously insulates the defendants from liability for their own negligent conduct is moot. Neither the holding in Lafate nor in Devecchio relate to allegations of reckless conduct. Accordingly, because Plaintiffs now assert that Defendant’s conduct was reckless, Lafate and Devecchio are distinguishable from the case at bar.

Finally, the Court considers whether, for purposes of this motion, recklessness is subsumed in negligence, and is therefore barred as a form of negligence. Prosser and Keeton on Torts is particularly informative, providing that “such [exculpatory] agreements [that expressly exempt defendants from liability for their negligent conduct] generally are not construed to cover the more extreme forms of negligence, described as willful, wanton, reckless or gross, and to any conduct which constitutes an intentional tort.”[27] Adopting Prosser and Keeton’s interpretation, this Court finds that although the Release does insulate Defendants from liability for negligent conduct, it does not bar claims of “more extreme forms of negligence, ” such as “reckless” conduct.[28]

C. A Motion for Judgment on the Pleadings is Inappropriate at this Juncture in Light of any Undeveloped Claims of Reckless Conduct

Although Tommy’s father’s execution of the Release precludes recovery from Defendants on a theory of “negligence, ” Plaintiffs assert that the Defendants’ conduct was “reckless.” Plaintiffs did not explicitly allege in a separate count of the complaint that Defendant’s conduct was reckless, but Plaintiffs did make it apparent in the complaint that it was an intended theory of liability.[29] In their briefing and at oral argument, Plaintiffs suggested that Defendants, among other things, had been aware of previous collisions with the shipping container, and that their ignorance of these prior incidents amounts to reckless behavior.[30]Accordingly, the Court must determine whether the Release bars Plaintiffs from asserting claims resulting from injuries caused by Defendants’ reckless conduct.

Courts in Delaware have a strong preference for resolving cases on their merits, or at least allowing discovery to proceed such that additional evidence in support of the parties’ contentions can be developed.[31] While this preference is not outcome-determinative, the preference for resolving cases on the merits is a strong factor in determining whether to grant or deny a dispositive motion.

Plaintiffs, at oral argument and in their response to the motion, argue that they are entitled to recovery based on Defendants’ allegedly reckless conduct. The parties agree that this theory is separate from the one count of “negligence” listed in the complaint.[32] The operative language of the Release does not explicitly enumerate or contemplate recklessness as a theory of recovery barred by the Release. Under Delaware law, as provided in Ketler, a release must be “clear and unambiguous” in order to effectively release the business owner from liability.[33]

This Court finds that the language of the release is not “clear and unambiguous” with respect to Defendants’ liability for their own allegedly reckless conduct. In Ketler, the release at issue specifically used the word “negligence, ” and stated that Defendants “will not be liable for any injury, including, without limitation, personal, bodily, or mental injury . . . resulting from the negligence of [the defendants].” The Delaware Supreme Court held that this language satisfied the “clear and unequivocal” standard and upheld the language of the agreement.

Turning to the Release that Plaintiffs executed, this Court finds that the Release is silent as to claims of recklessness. The Release does not mention “reckless” conduct, and instead only expressly refers to injury caused by Defendants’ “negligence.” In the absence of such language, the Release does not clearly and unambiguously exculpate Defendants from liability for their own reckless conduct. Accordingly, the Release does not operate to bar Plaintiffs’ claim of recklessness.[34]

This Court holds that the Release does not bar claims of reckless conduct. This Court expresses no opinion at this juncture as to whether Plaintiffs ultimately can establish claims against for recklessness. Accordingly, the Court denies Defendants’ Motion for Judgment on the Pleadings, and will grant Plaintiffs leave to conduct further discovery with the option of potentially amending the complaint in support of their contention that Defendants’ conduct was “reckless.”[35]

D. The Court does Not Reach Defendant’s Argument under the Doctrine of Assumption of the Risk

Finally, Defendants’ contend that Plaintiffs assumed the risk of injury from Defendants’ alleged reckless conduct. However, the record has not been sufficiently developed to determine whether Defendants’ conduct was reckless or whether Plaintiffs assumed the risk of injury from Defendants’ allegedly reckless conduct.[36] Accordingly, the Court does not reach this contention at this stage of the litigation.

IV. CONCLUSION

Defendant’s Motion for Judgment on the Pleadings is DENIED. The Court has enclosed an Order establishing a Scheduling Conference in this case.

Very truly yours,

Richard R. Cooch Resident Judge

Notes:

[1] Defendant Houghton’s Amusement Park, LLC did not make an appearance in this case and had a default judgment taken against it on June 21, 2016.

[2]Compl. ¶¶ 79-87.

[3]Compl. ¶ 48.

[4]Defs.’ Mot. for J. on the Pleadings, Ex. A.

[5]Defs.’ Mot. for J. on the Pleadings, Ex. A. Tommy also signed an agreement, titled “Minor’s Assumption of the Risk Acknowledgment, ” that Defendants reference in their motion as another reason they are not liable for Plaintiffs’ injuries. However, it appears from the motion and subsequent filings that the release signed by Tommy is only mentioned in passing, and is not relied upon by Defendants. The release signed by Tommy’s father is the determinative release in the case at bar.

[6]Compl. ¶¶ 79-87.

[7]Compl. ¶¶ 49, 51, 77, 87. Specifically, the Complaint alleges that “Defendants’ failure to exercise reasonable care as alleged above comprised outrageous conduct under the circumstances, manifesting a wanton and reckless disregard of the rights of the Plaintiffs.” Compl. ¶ 87. The Complaint also alleges that Tommy’s injuries were caused by the “reckless indifference” of Defendants. Compl. ¶¶ 51, 77. Moreover, the Complaint alleges that the track was “reckless[ly] design[ed].” Compl. ¶ 49.

[8]At oral argument, Plaintiffs’ counsel answered in the affirmative when the Court asked “Am I understanding Plaintiffs’ position correctly when I read the papers to say that Plaintiffs are not alleging ordinary negligence, but rather recklessness?” Lynam et al. v. Blue Diamond LLC Motocross et al, C.A. No. N14C-11-121 RRC, at 6 (Del. Super. July 6, 2016) (TRANSCRIPT) [hereinafter Oral Arg. Tr.].

[9] Defs.’ Mot. for J. on the Pleadings, Ex. A.

[10] A judgment on the pleadings is based only upon a review of Plaintiffs’ complaint and Defendants’ answer. However, under Rule 12(c), “If, on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the Court, the motion shall be treated as one for summary judgment.” Super. Ct. Civ. R. 12(c). In the case at bar, Defendants introduced the two executed releases as exhibits to their motion. However, the releases were not a part of the pleadings. Nevertheless, the parties agree that this motion should be treated as a motion for judgment on the pleadings.

[11] Silver Lake Office Plaza, LLC v. Lanard & Axilbund, Inc., 2014 WL 595378, at *6 (Del. Super. Jan. 17, 2014) (quoting Blanco v. AMVAC Chem. Corp., 2012 WL 3194412, at *6 (Del. Super. Aug. 8, 2012)).

[12] Id. (quoting Velocity Exp., Inc. v. Office Depot, Inc., 2009 WL 406807, at *3 (Del. Super. Feb. 4, 2009).

[13] Id. (internal quotation marks omitted).

[14] See Oral Arg. Tr. at 6.

[15] Ketler v. PFPA, LLC, 132 A.3d 746 (Del. 2016) (upholding “hold harmless” agreements and releases that relieve a proprietor from liability for its own negligent activities).

[16] Id. at 747-48.

[17] Riverbend Cmty., LLC v. Green Stone Eng’g, LLC, 55 A.3d 330, 336 (Del. 2012) (internal quotation marks omitted) (quoting State v. Interstate Amiesite Corp., 297 A.2d 41, 44 (Del. 1972)).

[18] Ketler, 132 A.3d at 747.

[19] Id.

[20] Id.

[21] Oral Arg. Tr. at 14-16.

[22] Defs.’ Mot. for J. on the Pleadings, Ex. A (emphasis added).

[23] 1999 WL 1241074 (Del. Super. Oct. 22, 1999).

[24] 2004 Del. Super. LEXIS 444 (Del. Super. Nov. 30, 2004).

[25] The plaintiff in Lafate was injured by a metal bar used to divide a basketball court. This Court found that while the agreement did “speak[] of ‘any and all injuries which may be suffered by [players] during [their] participation, ‘” the absence of the word “negligence” insufficiently insulated the defendants from liability for their own negligent conduct. Lafate, 1999 WL 1241074, at *4.

[26] In Devecchio, the defendant owned a motorcycle race track that required riders to sign agreements releasing the defendant from liability for injuries resulting from both the riders and the defendant’s negligence. The release pertaining to the defendant’s negligence expressly used the word “negligence.” This Court found that the release using the word “negligence” was sufficiently clear and unambiguous, and therefore insulated the defendant from liability for its own negligent conduct. Devecchio v. Enduro Riders, Inc., 2004 Del. Super. LEXIS 444 (Del. Super. Nov. 30, 2004).

[27] W. Page Keeton, et al., Prosser and Keeton on Torts, § 68 at 483-84 (5th ed. 1984)). Delaware courts often rely on Prosser and Keeton on Torts in reaching their conclusions. See, e.g., Culver v. Bennett, 588 A.2d 1094, 1097 (Del. 1991); Lafate v. New Castle County, 1999 WL 1241074 (Del. Super. Oct. 22, 1999); Brzoska v. Olson, 668 A.2d 1355, 1360 (Del. 1995).

[28] Additionally, the Delaware Civil Pattern Jury Instructions for negligence and recklessness are substantially different. The Delaware Civil Pattern Jury Instruction for negligence provides:

This case involves claims of negligence. Negligence is the lack of ordinary care; that is, the absence of the kind of care a reasonably prudent and careful person would exercise in similar circumstances. That standard is your guide. If a person’s conduct in a given circumstance doesn’t measure up to the conduct of an ordinarily prudent and careful person, then that person was negligent. On the other hand, if the person’s conduct does measure up to the conduct of a reasonably prudent and careful person, the person wasn’t negligent.

Del. Super. P.J.I. Civ. § 5.1 (2003), http://courts.delaware.gov/forms/download.aspx?id=85928. On the other hand, the Delaware Civil Pattern Jury Instruction for reckless conduct states:

Reckless conduct reflects a knowing disregard of a substantial and unjustifiable risk. It amounts to an “I don’t care” attitude. Recklessness occurs when a person, with no intent to cause harm, performs an act so unreasonable and so dangerous that he or she knows, or should know, that harm will probably result.

Del. Super. P.J.I. Civ. § 5.9 (2003), http://courts.delaware.gov/forms/download.aspx?id=85928. It is apparent from a comparison of the two different jury instructions that negligence conduct requires a departure from the ordinary standard of care exhibited by the reasonably prudent person, an objective standard. However, in contrast, it appears from the pattern jury instructions that reckless conduct requires a subjective “I don’t care” attitude that evidences an even greater departure from the ordinary standard of care, amounting to an unreasonable conscious disregard of a known risk.

[29] Compl. ¶¶ 49, 51, 77, 87. For example, Plaintiffs allege that “The reckless design of the track, which was intentionally constructed next to the pre-existing intermodal container, requires riders to land from a jump and immediately decelerate in order to execute a 90° right turn.” Compl. ¶ 49. Moreover, Plaintiffs allege that Tommy’s injuries were “a direct and proximate result of the negligence, carelessness and reckless indifference of Defendants.” Compl. ¶ 77.

[30] Pl.’s Suppl. Resp. in Opp’n to the Mot. for J. on the Pleadings, at 2.

[31] Keener v. Isken, 58 A.3d 407, 409 (Del. 2013); see also Wallace v. Wood, 2007 WL 3331530 (Del. Ch. Oct. 31, 2007); DeSantis v. Chilkotowsky, 2004 WL 2914314, at *2 (Del. Super. Nov. 18, 2004), Sup. Ct. Civ. R. 56.

[32] Plaintiffs did not plead any explicit claim of recklessness. See, e.g., J.L. v. Barnes, 33 A.3d 902, 916 n.77 (De. 2011) (treating recklessness and gross negligence as interchangeable and noting, “In order for a plaintiff to plead gross negligence with the requisite particularity, the plaintiff must articulate ‘facts that suggest a wide disparity between the process [] used . . . and that which would have been rational.'” J.L. states that a complaint pleading ten pages of facts to support a claim of gross negligence or recklessness was sufficient to meet the pleading standard). Defendants argue that Plaintiffs have not properly pleaded reckless conduct under Superior Court Civil Rule 9(b). However, the Court need not reach that issue since it will give Plaintiffs the opportunity to amend their complaint.

[33] Ketler, 132 A.3d at 747.

[34] Because the Court finds that Defendants’ release does not explicitly bar claims of “reckless” conduct, this Court does not reach the question of whether such a release is potentially permissible under Delaware law. However, this Court notes that other jurisdictions have differing perspectives on whether exculpatory agreements barring claims for recklessness, gross negligence, willful acts, or strict liability are enforceable. See Randy J. Sutton, Annotation, Validity, Construction, and Effect of Agreement Exempting Operator of Amusement Facility from Liability for Personal Injury or Death of Patron, 54 A.L.R.5th 513 (1997). For example, in Barker v. Colo. Region-Sports Car Club of Am., the Colorado Court of Appeals held that exculpatory agreements can release a party only for simple negligence, and not from willful and wanton negligence. 532 P.2d 372, 377 (Colo.App. 1974). Similarly, in Wheelock v. Sport Kites, Inc., the United States District Court for the District of Hawaii held that a release was invalid with respect to claims of gross negligence and strict liability. 839 F.Supp. 730, 736 (D. Haw. 1993). The above annotation suggests that a common reason to not enforce such an agreement is because they are void against the state’s public policy.

Alternatively, other jurisdictions have upheld agreements that exculpate business owners for reckless conduct or strict liability. For example, in Murphy v. N. Am. River Runners, Inc., the West Virginia Supreme Court discussed the matter, stating:

Generally, in the absence of an applicable safety statute, a plaintiff who expressly and, under the circumstances, clearly agrees to accept a risk of harm arising from the defendant’s negligent or reckless conduct may not recover for such harm, unless the agreement is contrary to public policy. When such an express agreement is freely and fairly made, between two parties who are in equal bargaining position, and there is no public interest with which the agreement interferes, it will generally be upheld.

412 S.E.2d 504, 508-09 (W.Va. 1991).

[35]Delaware Courts have previously allowed such an amendment to be made. As this Court held in Guy v. Phillips, a party may amend a complaint following additional discovery when the amended count arises out of the same factual basis for the original complaint. 1997 WL 524124 (Del. Super. July 2, 1997).

[36] In support of this defense, the Court notes that Defendants rely solely on Deuley v. DynCorp Int’l, Inc., 2010 WL 704895 (Del. Super. Feb. 26, 2010). However, Deuley is distinguishable from the case at bar. In Deuley, surviving relatives of decedents killed by an improvised explosive device (“IED”) in Afghanistan filed a wrongful death action. As part of the employment agreement, the decedents signed an agreement that provided employees expressly assumed the risk of injury or death. In reaching its conclusion that the decedents assumed the risk of death, the Court found that “when [the decedents] signed the releases, even a poorly informed American had to have appreciated that working in Afghanistan involved the general risk of insurgent or terrorist attacking by an IED.” Deuley, 2010 WL 704895, at *4. “The complaint offers no reason to find that any plaintiff here was probably unaware of the general risk of being injured or killed by a bomb.” Id. In the case at bar, drawing inferences in the light most favorable to the Plaintiffs, it is unlikely that Plaintiffs were aware of the risk posed by the shipping container, since they allege that they were unable to inspect the track prior to Tommy using it. Accordingly, Defendants’ reliance on Deuley is inapposite since it could be determined that a collision with the metal shipping container was not contemplated by the Plaintiffs when they signed the Release.


What the term “strictly construed” actually means when used to describe how a release will be viewed by the court.

The decision involves several legal issues, the one that concerns us is the issue of a release for a product. In Kansas, releases are strictly construed. In this case that meant that the language of the release did not meet the requirements of state law for a release. However, the court stretched incredibly far to come to that conclusion.

Fee v. Steve Snyder Enterprises, Inc.; Et. Al., 1986 U.S. Dist. LEXIS 28158

State: Kansas, United States District Court for the District of Kansas

Plaintiff: Patricia Fee

Defendant: Steve Snyder Enterprises, Inc.; Russell Young; SSE, Incorporated; Greene County Sport Parachute Center of Wellsville, Kansas, Inc.; and John Doe Corporation

Plaintiff Claims: Wrongful death and survival claims based on negligence, product liability and breach of warranty

Defendant Defenses: Statute of Limitations ran,

Holding: for the plaintiff

Year: 1986

Summary

The lawsuit was brought over the failure of an automatic opener, which did not during a sky dive. The widow sued the manufacture of the device and the sky-diving center who sold the device to the deceased. The deceased signed a release and indemnity agreement, two separate documents when purchasing the automatic opener.

In Kansas, releases are allowed but strictly construed. Here strict construction is used, improperly, to interpret the release in an extremely narrow way to allow the lawsuit to proceed.

Facts

The deceased died when he was sky diving, and his automatic opening device failed to open. The automatic opening device was manufactured by the defendant.

The plaintiff spent eight years attempting to serve the defendant, starting in 1977 and finally serving the defendant in 1985. This lead to a discussion about when the lawsuit actually started, which takes the first half of the decision. Because the defendant had avoided service of process, because he knew about it and made attempts not to get sued, the date of the lawsuit started was the date he was served. However, due to the defendant’s actions, the statute of limitations did not run.

The widow purchased the automatic opener for the deceased, although the dates in the decision must be incorrect. The decision states the device was purchased a year after the deceased died. The device failed the first time it was used by the decedent.

The deceased signed a release for the parachute center. The defendant manufacturer raised the release as a defense to the claims of the plaintiff against the manufacture as well as those claims against the dive center.

The release was on one side of the paper and on the reverse was an assumption of risk language. The deceased also signed a separate indemnify agreement. The decedent signed both agreements.

This decision is that of the Federal District Court in Kansas.

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

The court first looked at release law in Kansas. If not against public policy, then Kansas recognizes exculpatory agreements, releases. However, like many state’s releases, the courts in Kansas use the language that releases “are not favored by the law and are strictly construed against the party relying on them.” Strictly construed does not require the specific term negligence but must clearly appear to express the intent to release from liability the defendant.

It is not necessary; however, that the agreement contained specific or express language covering in so many words the party’s negligence, if the intention to exculpate the party from liability clearly ap-pears from the contract, the surrounding circumstances and the purposes and objects of the parties.

The court in reading the release found it did not stop the plaintiff’s claims.

The court first in looking at the language found the language covered use of the product but did not cover liability for “sale” of the product.

First, a review of the agreement itself shows that, although it specifically releases the Parachute Center from liability for injuries or death arising out of the “ownership, operation, use, maintenance or control” of many devices,” the agreement fails to mention any release of liability revolving around the sale of any product to the parachuter.

The court admitted the deceased understood that parachuting was dangerous, that was not enough. By making the determination that the product was defective when sold, the court found the release would not stand because you cannot release liability for selling a defective product.

Strictly construing the agreement; however, we do not believe that this should be interpreted to exempt the Parachute Center from a failure to use due care in furnishing safe equipment, or should allow it to sell a product in a defective condition unreasonably dangerous to the parachuter. To do so would impermissibly extend the terms of the agreement to situations not plainly within its language.

The court then determined the release would also not work to stop the plaintiff’s claims for breach of either express or implied warranty. The court found attempting to release the defendant parachute center from liability was unconscionable. Under Kansas law, a release could be used to stop warranty claims, unless that was found to be unconscionable.

We, therefore, hold that plaintiff’s action is not barred by the release, covenant not to sue and indemnity clause signed by the plaintiff’s decedent. Summary judgment in favor of the defendants Parachute Center and Russell Young is therefore, inappropriate.

The indemnification agreement seemed to be ignored in reaching this determination by the court.

So Now What?

Strict construction is a term that gives leeway to a court to review the language of the release to make sure it conforms to the language required under state law. However, that term was created and applied to release’s decades ago and rarely used now except in rare situations like this. When the judge wants the defendant to pay.

Probably the term was created when courts were first asked to apply releases to a plaintiff’s claims and wanted a way to soften the blow. Now days, in most states it is quoted in the decision at the beginning and never heard of again. Eventually if the courts review enough releases, the term is not even quoted.

Few states allow a release to be used to stop product liability claims. However, several states do and several states allow assumption of risk to stop product liability claims. A well-written release that incorporates assumption of risk language is still effective in many product liability cases.

Here, however, the court reached as far as it could to find that the release was barred from stopping the claims. Part of that desire to allow the suit to proceed was probably because of the actions of the manufacturer who spend eight years avoiding service of the lawsuit.

The rest, however, was simply a stretch to allow the lawsuit to proceed.

What do you think? Leave a comment.

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Fee v. Steve Snyder Enterprises, Inc.; et. Al., 1986 U.S. Dist. LEXIS 28158

Fee v. Steve Snyder Enterprises, Inc.; et. Al., 1986 U.S. Dist. LEXIS 28158

Patricia Fee, Plaintiff, v. Steve Snyder Enterprises, Inc.; Russell Young; SSE, Incorporated; Greene County Sport Parachute Center of Wellsville, Kansas, Inc.; and John Doe Corporation, Defendants

CIVIL ACTION No. 84-2323

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

1986 U.S. Dist. LEXIS 28158

March 14, 1986

CASE SUMMARY:

CORE TERMS: parachute, sport, summary judgment, decedent, personally, covenant, implied warranties, statute of limitations, service of process, mail service, notice, mail, parachuting, personal injury, personal service, parachuter, consumer, assigns, wrongful death, strict liability, territorial limits, unconscionable, consequential, predecessor, disclaimer, diversity, automatic, warranty, opening, saving

COUNSEL: [*1] John E. McKay, LAW OFFICES OF BENSON & McKAY, 911 Main Street, Suite 1430, Kansas City, Missouri 64105, (816) 842-7604; Mark R. Singer/Micheline Z. Burger ROMAIN, BURGER & SINGER, CHTD., The College View Building, 4500 College Blvd., Suite 103, Overland Park, Kansas 66221, (913)649-5224; Paul v. Herbers, James E. Cooling, Cooling, Herbers & Sears, P.C., P.O. Box 26770, Kansas City, MO 64196, (816) 474-0770; Russell C. Leffel, 7315 Frontage Road, Suite 111, Shawnee Mission, KS 66204, 913-362-9727, Neal E. Millert, Larry J. Tyrl, James, Millert, Houdek, Tyrl & Sommers, 804 Bryant Building, 1102 Grand, Kansas City, Missouri 64106, Randolph G. Austin, Speer, Austin, Holliday, & Ruddick, 261 N. Cherry, P.O. Box 1000, Olathe, Kansas 66061.

OPINION BY: O’CONNOR

OPINION

MEMORANDUM AND ORDER

EARL E. O’CONNOR, CHIEF JUDGE.

This matter is before the court on defendants’ motions for summary judgment and plaintiff’s motion for costs. This is a diversity action for wrongful death and survivorship based on claims of negligence, strict liability and breach of express and implied warranties.

I. Motion for Summary Judgment by Defendant SSE, Incorporated.

Defendant SSE, Incorporated, moves for [*2] summary judgment on the ground that plaintiff’s action is barred by the two-year statute of limitations found at K.S.A. 60-513(a). For the following reasons, defendant’s motion must be denied.

[HN1] Summary judgment is appropriate when the matters considered by the court disclose 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.” Federal Rule of Civil Procedure 56(c). The court must look at the record in the light most favorable to the party opposing the motion. Prochaska v. Marcoux, 632 F.2d 848, 850 (10th Cir. 1980), cert. denied, 451 U.S. 984 (1981). Before summary judgment may be granted, the moving party must establish that it is entitled to summary judgment beyond a reasonable doubt. Ellis v. El Paso Natural Gas Co., 754 F.2d 884, 885 (10th Cir. 1985).

The uncontroverted facts relevant to this motion are as follows:

1. The plaintiff’s decedent died while skydiving on December 11, 1982, when his parachute failed to open. Decedent’s parachute was equipped with an automatic opening device, which was manufactured by the defendant SSE, Incorporated.

2. Plaintiff filed this lawsuit on August 13, [*3] 1984, consisting of wrongful death and survival claims based on negligence, product liability and breach of warranty. Plaintiff named Steve Snyder Enterprises, Inc., as a defendant, claiming that it was a Pennsylvania corporation that designed, manufactured and sold the defective device.

3. On August 14, 1984, the complaint was mailed to Steve Snyder Enterprises, Inc., at a New Jersey address.

4. Steve Snyder Enterprises, Inc., had changed its name to “SSE, Incorporated,” in November of 1977. Its corporate headquarters, however, remained at the same location.

5. SSE, Incorporated, received the complaint at the New Jersey address.

6. ln a telephone conversation with plaintiff’s counsel, the attorney for SSE, Incorporated, advised plaintiff’s counsel that neither SSE nor its predecessor corporation, Steve Snyder Enterprises, Inc., would accept service by mail.

7. On November 1, 1984, counsel for SSE, Incorporated, rated, wrote to plaintiff’s counsel, again informing him that SSE intended not to acknowledge the mail service.

8. On November 14, 1984, the complaint was again mailed to Steve Snyder Enterprises, Inc. SEE, Incorporated, received the complaint, but refused to sign or [*4] return an acknowledgement.

9. On December 7, 1984, plaintiff filed her first amended complaint, adding SSE, Incorporated, as a defendant.

10. From January 1985 to August 28, 1985, plaintiff’s process servers made thirty-three attempts to personally serve SSE, Incorporated.

11. On August 29, 1985, plaintiff successfully served Steve Snyder, the registered agent and president of SSE, Incorporated.

Defendant SSE, Incorporated, argues that summary judgment is appropriate on all of plaintiff’s claims because they are barred by the two-year statute of limitations for wrongful death actions set forth at K.S.A. 60-513(a)(5). The court notes, however, that not all of plaintiff’s claims are for wrongful death — Counts VI through VIII are survival actions based on negligence, strict liability and breach of express and implied warranties. Nevertheless, a similar two-year statute of limitations (see K.S.A. 60-13(a)(4)) applies to the negligence, strict liability and breach of warranty claims. See Grey v. Bradford-White Corp., 581 F.Supp. 725 (D. Kan. 1984). The court will therefore treat defendant’s motion as seeking summary judgment on all of plaintiff’s claims and not merely plaintiff’s [*5] wrongful death claims.

To decide whether plaintiff’s claims are barred by the two-year statute of limitations, we must first determine when plaintiff’s suit was commenced. [HN2] In a diversity action, the court must apply the state law prescribing when an action commences for statute of limitations purposes rather than Rule 3 of the Federal Rules of Civil Procedure. Walker v. Armco Steel Corp., 446 U.S. 740 (1980); Ragan v. Merchants Transfer & Warehouse Company, 337 U.S. 530 (1949). [HN3] Kansas law provides that an action is commenced at the time a petition is filed if service of process is obtained within ninety days. See K.S.A. 60-203(a)(1). If service is not obtained during the 90-day period, then the action is commenced at the time of service. Id.

Defendant argues that plaintiff’s action did not com- mence until August 29, 1985, when plaintiff personally served the agent of SSE, Incorporated, Steve Snyder. Accordingly, since plaintiff’s cause of action arose on December 11, 1982, her claims are barred by the two-year statute of limitations. We are not persuaded by defendant’s argument.

We conclude that plaintiff’s action was timely commenced under the saving provisions [*6] of K.S.A. 60-203(b). That section provides:

[HN4] If service of process or first publication purports to have been made within the time specified by subsection (a)(1) but is later adjudicated to have been invalid due to any irregularity in form or procedure or any defect in making service, the action shall nevertheless be deemed to have been commenced by the original filing of the petition if valid service is obtained or first publication is made within 90 days after that adjudication, except that the court may extend that time an additional 30 days upon a showing of good cause by the plaintiff.

Id.

Applying this statute to the facts in this case, we find that plaintiff purported to serve process by mail on August 14, 1984, only one day after the suit was filed. Service by mail is proper under a recent amendment to the Kansas Code of Civil Procedure. 1
See K.S.A. 60-314 (Supp. 1985). We find, however, that plaintiff’s service was invalid due to the defendant’s failure to complete and return the enclosed notice. Under the saving provision of section 60-203(b), we may nevertheless deem plaintiff’s action to have been commenced on the date plaintiff’s complaint was filed, [*7] so long as plaintiff makes personal service on the defendant within ninety days of this order.

1 We must look to the Kansas law prescribing the method of service. This is a diversity action in which plaintiff asserts jurisdiction over the defendant pursuant to the Kansas long-arm statute, K.S.A. 60-308. Fed. R. Civ. P. 4(f) provides that “process other than a subpoena may be served anywhere within the territorial limits of the state in which the district court is held, and when authorized by a statute of the United States or by these rules, beyond the territorial limits of that state.” There is no applicable federal statute that would allow service of process outside the state in this case. Thus, in order to obtain service beyond the territorial limits of the court, there must be authorization in “these rules.” Rule 4(e) provides for service of process on defendants who are not inhabitants of or found within the state. In pertinent part it states:

Whenever a statute or rule of court of the state in which the district is held provides (1) for service of a summons, or of a notice, or of an order in lieu of summons upon a party not an inhabitant of or found within the state, . . . service may . . . be made under the circumstances and in the manner prescribed in the [state] statute or rule.

Clearly, service by mail is a “manner” of service provided by the Kansas statute in this situation. See K.S.A. 60-314 (Supp. 1985).

[*8] Defendant also argues that because plaintiff’s mail service was directed to Steve Snyder Enterprises, Inc., rather than to SSE, Incorporated, it was totally ineffective. We find defendant’s argument meritless for two reasons. First, under the saving provision discussed above, plaintiff’s mistake in naming defendant’s predecessor corporation qualifies as a defect in the service that may be remedied by plaintiff reserving the defendant under its proper name within ninety days of this order. Second, [HN5] both the federal rules (Rule 15(c)) and Kansas law (K.S.A. 60-215(c)) allow for relation back of an amendment changing a party. Under these provisions, [HN6] a change in party relates back so long as the claim asserted arose out of the events set forth in the original complaint and

within the period provided by law for commencing the action against him, the party to be brought in by amendment (1) has received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits, and (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him.

Federal Rule [*9] of Civil Procedure 15(c); K.S.A. 60-215(c).

In this case, an amendment changing defendant’s name from Steve Snyder Enterprises, Inc., to SSE, Incorporated, would clearly relate back. First, the claims asserted would be identical to those originally filed. Second, SSE, Incorporated, admits it had notice of this action within the statutory period. Counsel for SSE, Incorporated, informed plaintiff’s counsel in August and November of 1984 that SSE had received the mail service but chose not to acknowledge it. Third, SSE, Incorporated, knew that but for plaintiff’s confusion over the name of its predecessor corporation, the action would have been brought against it.

We therefore hold that plaintiff shall have ninety (90) days from the date of this order to personally serve the defendant SSE, Incorporated. Upon such service, plaintiff’s action will be deemed to have commenced on August 13, 1984, when the case was filed. Plaintiff’s claims will therefore be timely. If, however, plaintiff fails to serve SSE, Incorporated, within the 90-day time period, plaintiff’s action against this defendant will be deemed time-barred. Defendant’s motion for summary judgment will therefore be held in abeyance [*10] for ninety days from the date of this order to allow plaintiff to properly serve the defendant.

II. Plaintiff’s Motion for Costs.

Plaintiff moves for payment of the costs incurred in plaintiff’s previous attempts to personally serve defendant. [HN7] Costs are available pursuant to both Federal Rule of Civil Procedure 4(c)(2)(D) and K.S.A. 60-314:

Unless good cause is shown for not doing so the court shall order the payment of the costs of personal service by the person served if such person does not complete and return within 20 days after mailing, the notice and acknowledgment of receipt of summons.

Defendant in this case has shown no reason why costs should not be assessed against it. Defendant deliberately refused to acknowledge mail service and even went so far as to inform plaintiff that it was electing to assert its “right to service of process in the customary manner and not by mail.” Defendant’s Exhibit 4. Not only did defendant refuse mail service, but it also made every attempt to thwart personal service. Plaintiff was thus forced to attempt service at least thirty-three times against defendant. We therefore hold that plaintiff is entitled to recover costs in [*11] the amount of $1,628.47 as requested in her motion. Furthermore, plaintiff will be entitled to recover costs incurred in serving the defendant again, as discussed in part I above, upon plaintiff’s submission of proof of expenses.

III. Motion for Summary Judgment by Defendants Russell Young and Greene County Sport Parachute Center.

Defendant Russell Young moves for summary judgment on the ground that plaintiff’s decedent signed a release and covenant not to sue in favor of Greene County Sport Parachute Center of Wellsville, Kansas, Inc. (hereinafter the Parachute Center), and its employees and agents. The Parachute Center joins in said motion.

The material uncontroverted facts are as follows:

1. On May 8, 1982, plaintiff’s decedent signed a “Release and Covenant Not To Sue,” which read in pertinent part:

[I] do hereby fully and forever release and discharge the said Greene County Sport Parachute Center of Wellsville, Kansas, Inc. and their employees, servants, stockholders, agents, successors, assigns, and all other persons whomsoever directly or indirectly liable, from any and all other claims and demands, actions and cause of action, damages, costs, loss of services, [*12] expenses and any and all other claims of damages whatsoever, resulting from PERSONAL INJURIES, DEATH OR PROPERTY DAMAGES SUSTAINED BY ME, arising out of AIRCRAFT FLIGHTS, PARACHUTE JUMPS, or any other means of lift, ascent or descent from an aircraft of any nature, or arising out of the ownership, operation, use, maintenance or control of any vehicle, whether motor vehicle, aircraft, or otherwise, or any device, or mooring, while on the ground or in flight, and meaning and intending to include herein all such PERSONAL INJURIES, DEATH OR PROPERTY DAMAGE resulting from or in any way connected with or arising out of instructions, training, and ground or air operations incidental thereto.

This release and covenant not to sue is made and entered in consideration of the permission extended to me by Greene County Sport Parachute Center of Wellsville, Kansas, Inc. to participate in a course of parachuting instructions, parachuting training flying activities, ground or air operations incidental to parachuting and flying.

I further acknowledge that I will not rely on any oral or written representation of Greene County Sports Parachute Center of Wellsville, Kansas, Inc. or any agent thereof. [*13] I fully understand that there are dangerous risks in the sport of parachute jumping, and I assume said risks. . . .

I HAVE READ AND FULLY UNDERSTAND that Release and Covenant Not to Sue and sign the same as my own free act.

2. Plaintiff’s decedent also signed an “Indemnity Clause,” which read:

I acknowledge that Greene County Sport Parachute Center of Wellsville, Ks., Inc., is not an insurer of me. I do, for myself, my heirs, executors, administrators and assigns, hereby expressly stipulate, covenant and agree to indemnify and hold forever harmless the said Greene County Sport Parachute Center of Wellsville, Ks., Inc., and its employees, servants, stockholders, agents, successors, and assigns, and all other persons whomsoever against and from any and all actions, causes of action, claims and demands for damages, judgments, executions, costs, loss of services, expenses, compensation, including reimbursement of all legal costs and reasonable counsel fees incurred or paid by the said indemnified parties or any of them, for the investigation, prosecution or defense of any such action, cause of action or claim or demand for damages, and any and all other claims for damages, whatsoever, [*14] which may hereafter arise, or be instituted or recovered against said Greene County Sport Parachute Center of Wellsville, Ks., Inc., and its servants, employees, stockholders, agents, successors, assigns or any other person or persons whomsoever, by me or by any other person whomsoever, whether for the purpose of making or enforcing a claim for damages, on account of PERSONAL INJURIES, DEATH, OR PROPERTY DAMAGE sustained by me, or whether for the purpose of enforcing a claim for damages of any nature by any person whomsoever, on account of, or in any way resulting therefrom.

3. The decedent signed both the clause and release and certified that he had read them. His signature was witnessed by defendant Russell Young, President of the Parachute Center.

4. On the reverse side of the release, the decedent also signed and certified the following statements:

(9) I understand there are potential dangers and risks involved in this sport and acknowledge that the training I have received is intended to minimize such but is no guarantee or representation that there are none.

(10) I understand that parachuting is a potentially dangerous sport and that the proper functions of these parachutes [*15] or any parachute cannot be and is not guaranteed.

5. The decedent ordered and promised to pay for an automatic parachute opening device from the defendants Parachute Center and Russell Young. Young delivered the device to the decedent in December 1982.

6. The decedent used the device for the first time while skydiving on December 11, 1982. His parachute failed to open, he fell to the ground and was fatally injured.

7. The decedent’s widow paid the Parachute Center $254.60 for the device on January 27, 1983.

[HN8] Kansas courts have long recognized the validity of exculpatory agreements relieving a party from liability unless it would be against the settled public policy to do so. See, e.g., Belger Cartage Service, Inc. v. Holland Construction Co., 224 Kan. 320, 329, 582 P.2d 1111, 1118 (1978); Hunter v. American Rentals, 189 Kan. 615, 617, 371 P.2d 131, 133 (1962). Exculpatory contracts, however, “are not favored by the law and are strictly construed against the party relying on them.” Cason v. Geis Irrigation Co., 211 Kan. 406, 411, 507 P.2d 295, 299 (1973). Accord. Belger, 224 Kan. at 329, 582 P.2d at 1119. The terms of the agreement are not to be extended to [*16] situations not plainly within the language employed. Baker v. City of Topeka, 231 Kan. 328, 334, 644 P.2d 441, 446 (1982); Missouri Pacific Railroad Co. v. City of Topeka, 213 Kan. 658, 664, 518 P.2d 372, 377 (1973). It is not necessary, however, that the agreement contain specific or express language covering in so many words the party’s negligence, if the intention to exculpate the party from liability clearly appears from the contract, the surrounding circumstances and the purposes and objects of the parties. Bartlett v. Davis Corp., 219 Kan. 148, 159, 547 P.2d 800, 806 (1976).

After reviewing the language of the contract and the totality of the circumstances to determine the intent of these parties, we conclude that the release and indemnity clause do not preclude plaintiff’s action. First, a review of the agreement itself shows that, although it specifically releases the Parachute Center from liability for injuries or death arising out of the “ownership, operation, use, maintenance or control” of many device,” the agreement fails to mention any release of liability revolving around the sale of any product to the parachuter. Granted, there is a paragraph in [*17] which the parachuter states that he understands that parachuting is a potentially dangerous sport and that the proper function of the parachute cannot be guaranteed. Strictly construing the agreement, however, we do not believe that this should be interpreted to exempt the Parachute Center from a failure to use due care in furnishing safe equipment, or should allow it to sell a product in a defective condition unreasonably dangerous to the parachuter. To do so would impermissibly extend the terms of the agreement to situations not plainly within its language.

Other courts have held that similar releases exempt parachute centers and trainers only from injuries that ordinarily occur without any fault of the defendant. See Diedrich v. Wright, 550 F.Supp. 805 (N.D. Ill. 1982); Gross v. Sweet, 49 N.Y.2d 102, 424 N.Y.S.2d 65, 400 N.E.2d 306 (Ct.App. 1979). We agree with these courts that the language alerting the parachuter to the dangers in parachute jumping is used to drive home to the individual that he must enter into this sport with an apprehension of the risks inherent in the nature of the sport. See 550 F.Supp. at 808; 49 N.Y.2d at
, 424 N.Y.S.2d at 369, 400 [*18] N.E.2d at It does not, however, follow that he must accept enhanced exposure to injury or death based on the carelessness of the defendants in selling him a defective product or failing to warn him about its use.

Furthermore, we hold that the release was ineffective under Kansas law to limit liability for a breach of either an express or implied warranty. [HN9] With respect to disclaimer of express warranties, K.S.A. 84-2-719(3) provides:

Consequential damages may be limited or excluded unless the limitation or exclusion is unconscionable. Limitation of consequential damages for injury to the person in the case of consumer goods is prima facie unconscionable but limitation of damages where the loss is commercial is not.

In this case, the automatic opening device qualifies as a consumer good under K.S.A. 84-9-109. Under section 84-2-719(3), the defendants’ attempt to exclude consequential damages for personal injury was unconscionable and therefore unenforceable.

Furthermore, with respect to disclaimer of implied warranties of merchantability, [HN10] the Kansas Consumer Protection Act flatly prohibits in consumer cases the use of any limitation on remedies or liability for implied [*19] warranties, and declares that any such disclaimers are void. K.S.A. 50-639(a) and (e). See also id. at 84-2-719 (Kansas Comment).

We therefore hold that plaintiff’s action is not barred by the release, covenant not to sue and indemnity clause signed by plaintiff’s decedent. Summary judgment in favor of the defendants Parachute Center and Russell Young is therefore inappropriate.

IT IS THEREFORE ORDERED that defendants’ motion for summary judgment by Russell Young and Greene County Sport Parachute Center of Wellsville, Kansas, Inc., is denied.

IT IS FURTHER ORDERED that defendant’s motion for summary judgment by SSE, Incorporated, shall be held in abeyance until plaintiff obtains personal service upon SSE, Incorporated. Plaintiff shall have ninety (90) days from the date of this order to personally serve SSE, Incorporated. If plaintiff fails to so serve the defendant, defendant’s motion for summary judgment will be granted.

IT IS FURTHER ORDERED that plaintiff’s motion for costs to personally serve the defendant SSE, Incorporated, in the amount of $1,628.47, is granted.

Dated this 14th May of March, 1986, at Kansas City, Kansas.


Words and Phrases Defined in an Articles

The articles next to the term or phrase and state identify an article where the court has defined the term in the legal decision and it is quoted in the article.

This does not cover every decision posted on Recreation-law.com. However, you might find it helpful to understand some terms.

Term or Phrase

State

Article that Defines the Term or Phrase

Adhesion Agreement Colorado Colorado Federal District Court judge references a ski area lift ticket in support of granting the ski area’s motion for summary judgment and dismissing the lawsuit.
Admiralty Law Nevada Admiralty law did not stop a release from barring a claim for negligence for a parasailing injury.
Agency New Jersey The use of the PGA name was not enough to tire the PGA to a golf camp where they had no relationship or control. As such, they were dismissed from the suit because they had no duty to the injured minor.
Amicus Curiae Colorado 10th Circuit Court of Appeals upholds Colorado law concerning releases in a whitewater rafting fatality.
Ambiguity Minnesota Plaintiff argues under Minnesota law the language on the back of the season pass created an ambiguity which should void the season pass release for a ski area.
Apparent Authority New Jersey The use of the PGA name was not enough to tire the PGA to a golf camp where they had no relationship or control. As such, they were dismissed from the suit because they had no duty to the injured minor.
Pennsylvania Apparent Agency requires actual acts to hold a hotel liable for the injuries allegedly caused by a tour company
Assumption of Risk Assumption of the Risk    http://rec-law.us/wMtiET
Assumption of Risk — Checklist
California Assumption of the Risk to be a bar to a claim the defendant must now owe a duty to the plaintiff that means the plaintiff must be involved in recreation or a sport.
Hawaii The risk of hiking over lava fields is an obvious risk; falling while hiking is also a possibility….so is suing when you do both…but you won’t win
Massachusetts Duty of care for a Massachusetts campground is to warn of dangerous conditions.
New York If you have a manual, you have to follow it, if you have rules you have to follow them, if you have procedures, you have to follow them or you lose in court.

Skier assumes the risk on a run he had never skied before because his prior experience.

Ohio Ohio Appellate decision defines assumption of the risk under Ohio law and looks at whether spectators assume the risk.
Pennsylvania The harder a court works to justify its decision the more suspect the reasoning.
Pennsylvania PA court upholds release in bicycle race.
Pennsylvania Scary and Instructional case on assumption of the risk in a climbing wall case in Pennsylvania
South Carolina Assumption of the risk is used to defeat a claim for injuries on a ropes course.
Express Assumption of risk California BSA (Cub Scout) volunteer was not liable for injuries to cub because cub assumed the risk of his injuries. The BSA & Council were not liable because volunteer was not an agent.
Delaware If you agree to the rules you have to follow the rules
Pennsylvania Neither a release nor the Pennsylvania Equine Liability Act protects a stable for injuries when the stirrup broke.
Implied Assumption of the risk Missouri Missouri decision about ski rental form and a release that does not conform to MO law spell a mess for the ski resort
Pennsylvania Neither a release nor the Pennsylvania Equine Liability Act protects a stable for injuries when the stirrup broke.
Primary Assumption of Risk Delaware If you agree to the rules you have to follow the rules
Minnesota Assumption of Risk used to defend against claim for injury from snow tubing in Minnesota
Ohio In Ohio, Primary Assumption of the Risk is a complete bar to claims for injuries from hiking at night.

BSA (Cub Scout) volunteer not liable for injuries to cub because cub assumed the risk of his injuries. BSA & Council not liable because volunteer was not an agent.

Ohio Appellate decision defines assumption of the risk under Ohio law and looks at whether spectators assume the risk.

New York New York Decision explains the doctrine of Primary Assumption of the Risk for cycling.
South Carolina South Carolina Supreme Court writes a clear decision on Assumption of the Risk for sporting activities.
Secondary
Assumption of Risk
Arkansas Proof of negligence requires more than an accident and injuries. A Spectator at a rodeo needed proof of an improperly maintained gate.
California Most references in case law to assumption of the risk are to this California decision
Ohio Ohio Appellate decision defines assumption of the risk under Ohio law and looks at whether spectators assume the risk.
Business Invitee Pennsylvania Release lacked language specifying the length of time it was valid. Since the court could not determine the time the case was sent to a jury for that determination.
Ohio Poorly written release on a sign in sheet barely passes protecting Ohio defendant swimming area from suit.
Causation Indiana An ugly case balancing the marketing program to make people feel safe, which is then used to prove the incident giving rise to the negligence claim, was foreseeable.
Certiorari Colorado Colorado Supreme Court rules that an inbounds Avalanche is an inherent risk assumed by skiers based upon the Colorado Skier Safety Act.
Common Carrier California Balloon ride in California is not a common carrier, and the release signed by the plaintiff bars the plaintiff’s claims even though she did not read or speak English
Contracts
Meeting of the Minds North Carolina When is a case settled? When all parties (and maybe their attorneys) agree it is settled
Consideration What is a Release?
Concurring Opinion Utah The safety precautions undertaken by the defendant in this mountain bike race were sufficient to beat the plaintiff’s claims of gross negligence in this Utah mountain bike fatality
Contribution Massachusetts Industry standards are proof of gross negligence and keep defendant in lawsuit even with good release
Declaratory Judgment New Hampshire What happens if you fail to follow the requirements of your insurance policy and do not get a release signed? In New Hampshire you have no coverage.
Derivative Claim Sign in sheet language at Michigan health club was not sufficient to create a release.
Duty of Care California Balloon ride in California is not a common carrier, and the release signed by the plaintiff bars the plaintiff’s claims even though she did not read or speak English
New Jersey Is a negligent act to open a car door into a bike lane when a cyclists is in the lane in New Jersey
South Carolina South Carolina Supreme Court writes a clear decision on Assumption of the Risk for sporting activities.
Washington Summer Camp, Zip line injury and confusing legal analysis in Washington

Good News ASI was dismissed from the lawsuit

Essential Public Services Colorado 10th Circuit Court of Appeals upholds Colorado law concerning releases in a whitewater rafting fatality.
New Hampshire New Hampshire court upholds release and defines the steps under NH law to review a release.
Expert Witness Connecticut Summer camp being sued for injury from falling off horse wins lawsuit because the plaintiff failed to find an expert to prove their case.
Failure to Warn New York “Marketing makes promises Risk Management has to pay for” in this case the marketing eliminated the protection afforded by the warning labels
Foreseeability Colorado Be Afraid, be very afraid of pre-printed forms for your recreation business
Illinois When there is no proof that the problem created by the defendant caused the injury, there is no proximate causation, therefore no negligence
New Jersey Is a negligent act to open a car door into a bike lane when a cyclists is in the lane in New Jersey
Ohio Liability of race organizer for State Park Employees?
Washington Dive Buddy (co-participant) not liable for death of the diver because the cause of death was too distant from the acts of the plaintiff.
Idaho Federal Court in Idaho holds camp not liable for assault on third party by runaway minors.
Forum non conveniens Kansas If you fall down in a foreign country, and you have paid money to be there, you probably have to sue there.
Fraud Colorado 10th Circuit Court of Appeals upholds Colorado law concerning releases in a whitewater rafting fatality
Fraudulent Inducement New Hampshire Did a Federal District Court in New Hampshire allow a release to bar a minor’s claims?
Fraudulent Misrepresentation Georgia Lying in a release can get your release thrown out by the court.
California Defendant tells plaintiff the release has no value and still wins lawsuit, but only because the plaintiff was an attorney
Gross Negligence California Release saves riding school, even after defendant tried to show plaintiff how to win the case.
Idaho Statements made to keep a sold trip going come back to haunt defendant after whitewater rafting death.
Maryland Sky Diving Release defeats claim by Naval Academy studenthttp://rec-law.us/1tQhWNN
Massachusetts Colleges, Officials, and a Ski Area are all defendants in this case.
Massachusetts Industry standards are proof of gross negligence and keep defendant in lawsuit even with good release
Michigan Good Release stops lawsuit against Michigan bicycle renter based on marginal acts of bicycle renter

Allowing climber to climb with harness on backwards on health club climbing wall enough for court to accept gross negligence claim and invalidate release.

Nebraska In Nebraska a release can defeat claims for gross negligence for health club injury
New Hampshire In this mountain biking case, fighting each claim pays off.
New Jersey New Jersey upholds release for injury in faulty bike at fitness club
New York New York judge uses NY law to throw out claim for gross negligence because the facts did not support the claim
Pennsylvania Scary and Instructional case on assumption of the risk in a climbing wall case in Pennsylvania
Pennsylvania wrongful death statute is written in a way that a split court determined the deceased release prevented the surviving family members from suing.
Tennessee 75 Ft waterfall, middle of the night, no lights and a BAC of .18% results in two fatalities and one lawsuit. However, facts that created fatalities were the defense
Texas Suit against a city for construction retaining wall in City Park identifies defenses to be employed to protect park patrons.
Utah Utah’s decision upholds a release for simple negligence but not gross negligence in a ski accident.

The safety precautions undertaken by the defendant in this mountain bike race were sufficient to beat the plaintiff’s claims of gross negligence in this Utah mountain bike fatality

Inherently Dangerous Missouri 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.
Inherent Risks California This California decision looks at assumption of the risk as it applies to non-competitive long distance bicycle rides and also determines that assumption of the risk also overcomes a violation of a statute (negligence per se).
Interlocutory Appeal Tennessee Tennessee still does not allow a parent to sign away a minor’s right to sue, but might enforce a jurisdiction and venue clause, maybe an arbitration clause
Utah Utah courts like giving money to injured kids
Invitee Missouri Missouri decision about ski rental form and a release that does not conform to MO law spell a mess for the ski resort
Mississippi Mississippi retailer not liable for injury to a child who rode a bicycle through aisles he found on the store floor.
Joint Venture Missouri 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.
Judgment Notwithstanding the Verdict (JNOV or J.N.O.V.) Maryland Skiing collision in Utah were the collision was caused by one skier falling down in front of the other skier
Missouri 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.
Lex loci contractus Tennessee Tennessee still does not allow a parent to sign away a minor’s right to sue, but might enforce a jurisdiction and venue clause, maybe an arbitration clause
Long Arm Statute Requirements New York To sue a Vermont ski area there must be more than a web presence to sue in New York
Material Breach of a Contract Texas University climbing wall release along with Texas Recreational Use Act and Texas Tort Claims Act defeat injured climber’s lawsuit
Motion to Dismiss Colorado Colorado Premises Liability act eliminated common law claims of negligence as well as CO Ski Area Safety Act claims against a landowner.
Illinois When an organization makes rules and regulations that a subsidiary organization is supposed to obey, and then fails to follow, both organizations are liable to any plaintiff injured due to the failure to follow or enforce the organizational rules, policies, regulations or standards.
Negligence Georgia Georgia court finds no requirement for employee to interview when higher trained first aid providers are present
Idaho Idaho Supreme Court holds is no relationship between signs posted on the side of the trampoline park in a duty owed to the injured plaintiff
Illinois When an organization makes rules and regulations that a subsidiary organization is supposed to obey, and then fails to follow, both organizations are liable to any plaintiff injured due to the failure to follow or enforce the organizational rules, policies, regulations or standards.
Indiana Indiana decision upholds release signed by mother for claims of an injured daughter for the inherent risks of softball.

An ugly case balancing the marketing program to make people feel safe, which is then used to prove the incident giving rise to the negligence claim, was foreseeable.

Louisiana Louisiana State University loses climbing wall case because or climbing wall manual and state law.
Maryland Plaintiff failed to prove that her injuries were due to the construction of the water park slide and she also assumed the risk.
Massachusetts Industry standards are proof of gross negligence and keep defendant in lawsuit even with good release
Mississippi Mississippi decision requires advance planning and knowledge of traveling in a foreign country before taking minors there.
Pennsylvania Pennsylvania Supreme Court decision on duty to have and use an AED defines how statutes are to be interpreted and when liability can attach and cannot attach to a statute
South Dakota Great analysis of the “Rescue Doctrine” in a ballooning case from South Dakota
Texas University climbing wall release along with Texas Recreational Use Act and Texas Tort Claims Act defeat injured climber’s lawsuit
Negligence (Collateral) Missouri 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.
Negligence Per Se Colorado Instructional Colorado decision Negligence, Negligence Per Se and Premises Liability
Florida Motion for Summary Judgement failed because the plaintiff’s claim was based upon a failure to follow a statute or rule creating a negligence per se defense to the release in this Pennsylvania sailing case.
South Dakota Great analysis of the “Rescue Doctrine” in a ballooning case from South Dakota
Illinois (does not exist) When an organization makes rules and regulations that a subsidiary organization is supposed to obey, and then fails to follow, both organizations are liable to any plaintiff injured due to the failure to follow or enforce the organizational rules, policies, regulations or standards.
Negligent Misrepresentation New York The basics of winning a negligence claim is having some facts that show negligence, not just the inability to canoe by the plaintiff
No Duty Rule Pennsylvania The harder a court works to justify its decision the more suspect the reasoning.
Open and Obvious Michigan The assumption of risk defense is still available when the claim is based on a condition of the land. This defense is called the open and obvious doctrine.
New York “Marketing makes promises Risk Management has to pay for” in this case the marketing eliminated the protection afforded by the warning labels
Pennsylvania Release lacked language specifying the length of time it was valid. Since the court could not determine the time the case was sent to a jury for that determination.
Rhode Island
Passive-Retailer Doctrine Utah Retailers in a minority of states may have a defense to product liability claims when they have nothing to do with the manufacture of the product
Premises Liability Colorado Instructional Colorado decision Negligence, Negligence Per Se and Premises Liability
Mississippi Mississippi retailer not liable for injury to a child who rode a bicycle through aisles he found on the store floor.
Prima facie New Jersey New Jersey does not support fee shifting provisions (indemnification clauses) in releases in a sky diving case.
Prior Material Breach Texas University climbing wall release along with Texas Recreational Use Act and Texas Tort Claims Act defeat injured climber’s lawsuit
Product Liability Georgia Federal Court finds that assumption of the risk is a valid defense in a head injury case against a bicycle helmet manufacturer.
Tennessee Pacific Cycle not liable for alleged defective skewer sold to plaintiff by Wal-Mart
Utah Retailers in a minority of states may have a defense to product liability claims when they have nothing to do with the manufacture of the product
Negligent Product Liability Illinois Plaintiff fails to prove a product liability claim because she can’t prove what tube was the result of her injury
Public Policy California Defendant tells plaintiff the release has no value and still wins lawsuit, but only because the plaintiff was an attorney
Delaware Delaware Supreme Court decision quickly determines a health club release is not void because of public policy issues and is clear and unequivocal
Oregon Oregon Supreme Court finds release signed at ski area is void as a violation of public policy.
Pennsylvania Release lacked language specifying the length of time it was valid. Since the court could not determine the time the case was sent to a jury for that determination.
New Hampshire New Hampshire court upholds release and defines the steps under NH law to review a release.

Did a Federal District Court in New Hampshire allow a release to bar a minor’s claims?

Tennessee Tennessee still does not allow a parent to sign away a minor’s right to sue, but might enforce a jurisdiction and venue clause, maybe an arbitration clause
Punitive Damages New York “Marketing makes promises Risk Management has to pay for” in this case the marketing eliminated the protection afforded by the warning labels
Rescue Doctrine South Dakota Great analysis of the “Rescue Doctrine” in a ballooning case from South Dakota
Recklessness Missouri 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.
New Jersey New Jersey does not support fee shifting provisions (indemnification clauses) in releases in a sky diving case.
Ohio BSA (Cub Scout) volunteer was not liable for injuries to cub because cub assumed the risk of his injuries. The BSA & Council were not liable because volunteer was not an agent.

Ohio Appellate decision defines assumption of the risk under Ohio law and looks at whether spectators assume the risk.

Pennsylvania Neither a release nor the Pennsylvania Equine Liability Act protects a stable for injuries when the stirrup broke.
Release Connecticut Connecticut court rejects motion for summary judgment because plaintiff claimed he did not have enough time to read the release before he signed it
Colorado 10th Circuit Court of Appeals upholds Colorado law concerning releases in a whitewater rafting fatality

Colorado Federal District Court judge references a ski area lift ticket in support of granting the ski area’s motion for summary judgment and dismissing the lawsuit.

New Hampshire New Hampshire court upholds release and defines the steps under NH law to review a release.
Oklahoma Oklahoma Federal Court opinion: the OK Supreme Court would void a release signed by the parent for a minor.
New Hampshire Did a Federal District Court in New Hampshire allow a release to bar a minor’s claims?
Pennsylvania Tubing brings in a lot of money for a small space, and a well-written release keeps the money flowing

Release lacked language specifying the length of time it was valid. Since the court could not determine the time the case was sent to a jury for that determination.

Neither a release nor the Pennsylvania Equine Liability Act protects a stable for injuries when the stirrup broke.

Texas University climbing wall release along with Texas Recreational Use Act and Texas Tort Claims Act defeat injured climber’s lawsuit
Release Fair Notice Requirement under Texas law Texas Federal Court in Texas upholds clause in release requiring plaintiff to pay defendants costs of defending against plaintiff’s claims.
Remittitur Missouri 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.
res ipsa loquitur Illinois When an organization makes rules and regulations that a subsidiary organization is supposed to obey, and then fails to follow, both organizations are liable to any plaintiff injured due to the failure to follow or enforce the organizational rules, policies, regulations or standards.
Respondeat superior Missouri US Army and BSA not liable for injured kids on Army base. No control by the BSA and recreational use defense by US Army.
New Jersey The use of the PGA name was not enough to tire the PGA to a golf camp where they had no relationship or control. As such, they were dismissed from the suit because they had no duty to the injured minor.
Restatement (Second) of Torts Pennsylvania The harder a court works to justify its decision the more suspect the reasoning.
Standard Colorado
California
Words: You cannot change a legal definition
New York New York Decision explains the doctrine of Primary Assumption of the Risk for cycling
Ohio In Ohio, Primary Assumption of the Risk is a complete bar to claims for injuries from hiking at night
Rhode Island Rhode Island, applying New Hampshire law states a skier assumes the risk of a collision.
Standard of Review Pennsylvania Pennsylvania Supreme Court decision on duty to have and use an AED defines how statutes are to be interpreted and when liability can attach and cannot attach to a statute
Sudden Emergency Doctrine New York Eighteen year old girl knocks speeding cyclists over to protect children; Sudden Emergency Doctrine stops suit
Summary Judgment Connecticut Connecticut court rejects motion for summary judgment because plaintiff claimed he did not have enough time to read the release before he signed it
Pennsylvania Pennsylvania Supreme Court decision on duty to have and use an AED defines how statutes are to be interpreted and when liability can attach and cannot attach to a statute
Superseding or Intervening Causation Indiana An ugly case balancing the marketing program to make people feel safe, which is then used to prove the incident giving rise to the negligence claim, was foreseeable.
Tort Louisiana Louisiana court holds a tubing operation is not liable for drowning or failure to properly perform CPR
Unconscionable Delaware Delaware Supreme Court decision quickly determines a health club release is not void because of public policy issues and is clear and unequivocal
United States Constitution Fourteenth Amendment Buy something online and you may not have any recourse if it breaks or you are hurt
Willful, Wanton or Reckless Illinois When an organization makes rules and regulations that a subsidiary organization is supposed to obey, and then fails to follow, both organizations are liable to any plaintiff injured due to the failure to follow or enforce the organizational rules, policies, regulations or standards.
Ohio Ohio Appellate decision upholds the use of a release for a minor for a commercial activity.
Ohio Poorly written release on a sign in sheet barely passes protecting Ohio defendant swimming area from suit.
Minnesota Plaintiff argues under Minnesota law the language on the back of the season pass created an ambiguity which should void the season pass release for a ski area.
Missouri Missouri decision about ski rental form and a release that does not conform to MO law spell a mess for the ski resort
Nebraska Fees are charged, recreation is happening, but can the recreational use act still protect a claim, yes, if the fees are not for the recreation
Washington Dive Buddy (co-participant) not liable for death of the diver because the cause of death was too distant from the cause of the death.
Wyoming Rental agreement release was written well enough it barred claims for injuries on the mountain at Jackson Hole Mountain Resort in Wyoming
Wrongful Death Ohio Poorly written release on a sign in sheet barely passes protecting Ohio defendant swimming area from suit.

Last Updated April 24, 2018