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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.

The release was written poorly choosing California as the forum state for the lawsuit and applying California law. The accident occurred in Tennessee, and the defendant was based in Nevada so the court quickly through the venue and jurisdiction clauses out.

Blackwell, v. Sky High Sports Nashville Operations, LLC. 2017 Tenn. App. LEXIS 6

State: Tennessee, Court of Appeals of Tennessee, at Nashville

Plaintiff: Crystal Blackwell, as Next Friend to Jacob Blackwell, a Minor

Defendant: Sky High Sports Nashville Operations, LLC

Plaintiff Claims: negligence

Defendant Defenses: release

Holding: for the plaintiff

Year: 2017

Another trampoline case, another stretch outside the normal subject matter of these articles, however, the case is instructive on two points. (1.) The court just slammed the defendant’s release based on a jurisdiction and venue clause that had nothing to do with the place where the accident occurred and (2.) The judge stated a jurisdiction and venue clause in a release; if it met Tennessee’s law would be valid when signed by a parent to stop the claims of a child.

The minor plaintiff was injured while jumping on a trampoline at the defendant’s facility in Nashville, Tennessee. Prior to his injury, his mother signed a release. The minor plaintiff visited the defendant’s facilities on numerous occasions prior to his injury. He was injured playing a game of trampoline dodgeball.

The release included a forum selection (venue) clause, which stipulated California was the site of any lawsuit applying California law. (California allows a mother to sign away a parent’s right to sue. See States that allow a parent to sign away a minor’s right to sue).

The mother and the son sued the defendant. The defendant filed a motion to change parties, meaning the defendant named in the lawsuit was not the defendant who owned the facility where the accident occurred. The parties eventually stipulated to that, and the correct parties were identified and in the lawsuit. The defendant filed a motion to enforce the contract between the parties, meaning the lawsuit should be moved to California as stated in the release. The motion also stated the claims made by the mother should be dismissed because she signed the release.

The mother voluntarily dismissed her claims against the defendant. By doing so, the defendant was now arguing release law only against the minor plaintiff in a state with a long history of denying those releases. (See States that allow a parent to sign away a minor’s right to sue).

The trial court had a hearing on the issue of the venue and jurisdiction clauses and ruled them unenforceable.

Therein, the trial court ruled that neither the forum selection clause nor the choice of law provision were valid because their enforcement would cause a great hardship for Son to prosecute his action in California and, Tennessee, rather than California, has “a more significant relationship to the facts surrounding this case.”

The court also ruled that the release was not valid to protect against the claims of the minor, now the sole plaintiff in the case finding “The trial court also noted that Tennessee’s law included a fundamental public policy regarding the protection of children.”

The trial court eventually granted the defendant’s motion for an interlocutory appeal. An interlocutory appeal is an appeal prior to the granting of a final decision by the court. This type of appeal is rare and only done when one party can argue the issue should be decided by the appellate court prior to going to trial and has a good basis for their argument.

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

The Appellate Court found four issues to review:

1. Whether the trial court erred in refusing to enforce the forum selection clause contained in the release?

2. Whether the trial court erred in refusing to enforce the choice of law provision contained in the release?

3. Whether the trial court erred in refusing to enforce the waiver of liability against Son contained in the release signed by Mother?

4. Whether the trial court erred in refusing to allow the amendment to the complaint to allow Son to recover for pre-majority medical expenses.

Starting with issue one the court looked at the exact same issues discussed in Your Jurisdiction and Venue clause must be relevant to the possible location of the accident. Screw this up and you can void your release as occurred in this ski racing case. The court started with the general law concerning venue or forum selection clauses.

Generally, a forum selection clause is enforceable and binding on the parties entering into the contract. A forum selection clause will be upheld if it is fair and reasonable in light of all the circumstances surrounding its origin and application.

Forum selection clauses will be enforced unless:

(1) the plaintiff cannot secure effective relief in the other state, for reasons other than delay in bringing the action; (2) or the other state would be a substantially less convenient place for the trial of the action than this state; (3) or the agreement as to the place of the action was obtained by misrepresentation, duress, abuse of economic power, or other unconscionable means; (4) or it would for some other reason be unfair or unreasonable to enforce the agreement.

The forum selection clause is valid unless the party arguing against the clause proves it would be unfair and inequitable. “Tennessee law is clear, however, that the party challenging the enforcement of the forum selection clause “should bear a heavy burden of proof.”

The plaintiffs were from Tennessee, and the accident occurred in Tennessee. All the plaintiff’s witnesses were from Tennessee because that is where the injured minor received his medical treatment. The defendant was a Nevada corporation doing business in Nevada. However, the defendant’s release stated that California was the place for any litigation. The reason for that is California allows a parent to sign away a minor’s right to sue. (See States that allow a parent to sign away a minor’s right to sue).

California was obviously a “less convenient place” to have a trial because the majority, if not all the witnesses, were based in Tennessee. However, inconvenience or annoyance is not enough to invalidate a venue clause, nor will increased cost of litigating the case.

Still, the Tennessee Supreme Court has previously held that where neither company at issue was a resident of the proposed forum and none of the witnesses were residents of the proposed forum, the party resisting a forum selection clause had met its burden to show that the proposed forum was a substantially less convenient forum.

What triggered the court in its decision is the total lack of any real relationship of the parties to the case or the facts of the case to California. Add to that California first issue, the law would allow the release to be effective. Under Tennessee’s law, California would not provide a fair forum for the plaintiff. The release was signed in Tennessee, which the court stated was the default location for the litigation. “Tennessee follows the rule of lex loci contractus. This rule provides that a contract is presumed to be governed by the law of the jurisdiction in which it was executed absent a contrary intent.”

The choice of law or jurisdiction question sunk for the same reason.

Instead, the choice of law provision fails for largely the same reason that the forum selection clause fails: no material connection exists between the transaction at issue and California. As previously discussed, the contract at issue was signed in Tennessee, between Tennessee residents and a Nevada company, concerning activities taking place in Tennessee. Black’s Law Dictionary defines “material” as “[h]aving some logical connection with the consequential facts.” The simple fact that Sky High’s parent company was founded in California over a decade ago and now operates several facilities there is simply not sufficient to show a logical connection to the transaction at issue in this case.

The choice of law provision in Tennessee and most if not all states, will be honored when there is a “material connection” to the transactions at issue. That means that a jurisdiction and venue clause must be based where the plaintiff is, where the defendant is or where the accident happened. IF the jurisdiction and venue clause is based on the defendant’s location, the courts are looking for more than just location. They want witnesses needed to be there or a real reason why the defendant’s location to be the site of the trial and the law to be applied.

After throwing out the jurisdiction and venue clauses in the release for being an attempt to get around an issue, the court then looked at the release itself. The court first looked at limitations on releases in Tennessee.

These types of agreements, however, are subject to some important exceptions, such as waivers involving gross negligence or willful conduct or those involving a public duty. These types of provisions must also be clear and unambiguous.

The plaintiff’s argument was the release violated Tennessee’s public policy.

[T]he public policy of Tennessee is to be found in its constitution, statutes, judicial decisions and applicable rules of common law.'” “Primarily, it is for the legislature to determine the public policy of the state, and if there is a statute that addresses the subject in question, the policy reflected therein must prevail.”

To determine if a contract violates public policy the court must look at the purpose of the contract, if the contract will have a detrimental effect on the public. “‘The principle that contracts in contravention of public policy are not enforceable should be applied with caution and only in cases plainly within the reasons on which that doctrine rests.’”

The court then reviewed the Childress decision in detail and found it to still be viable law in Tennessee.

Based on the foregoing, we conclude that there is no basis to depart from this Court’s well-reasoned decision in Childress. Because the law in Tennessee states that parents may not bind their minor children to pre-injury waivers of liability, releases, or indemnity agreements, the trial court did not err in refusing to enforce the waiver of liability and indemnity provisions of the release signed by Mother on behalf of Son.

This court agreed, releases signed by parents to stop claims of a minor are invalid in Tennessee. Tennessee now has two appellate court decisions prohibiting a parent from signing away a minor’s right to sue. The Tennessee Supreme Court declined to review the decision, Blackwell v. Sky High Sports Nashville Operations, LLC, 2017 Tenn. LEXIS 305.

The court then looked at a motion filed by the plaintiff to increase the damages based on pre-majority medical expenses. These were medical bills paid by the mother prior to the injured plaintiff reaching the age of 18. Those bills under Tennessee’s law where the mother’s bills, the person who paid them, however, since she had dismissed her claims, those damages were no longer part of the suit. Now the plaintiff was trying to include them in the injured plaintiff’s claims.

The court denied that motion based on the release the mother signed, which prevented her claims and the plaintiff as a minor had no legal duty to pay those bills, only the mother could. Therefore, those damages could not be included in the lawsuit.

The release in that regard proved valuable to the defendant because the medical bills incurred right after the accident were the largest amount of claims to be paid.

So Now What?

This is a great example of a case where the local business accepted the release from above, home office, without checking to see if that release was valid. This occurs every day, with the same results, when an insured asks for a release from their insurance company or a new franchise opens up and accepts the paperwork from the franchisor as is.

Always have your release reviewed to see if it meets the needs of your business and the laws of your state.

The release was effective to stop the lawsuit for claims made by the mother of the injured minor. Those medical bills paid by the mother were probably substantial and would the largest amount of claims owed. In many cases with the reduced amount of medical bills, other damages would be significantly reduced because those damages tend to be a factor of the medical bills.

What is of note in this decision is the jurisdiction and venue clause, or choice of law and forum selection clause as defined in the decision would have been upheld if it was not so absurd. If the choice of law clause was based on the requirements that it have some relationship to the parties or the accident, it seems to have been a valid decision and upheld.

If you are interested in having me write your release, fill out this Information Form and Contract and send it to me.

What do you think? Leave a comment.

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Author: Outdoor Recreation Insurance, Risk Management and Law

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Your Jurisdiction and Venue clause must be relevant to the possible location of the accident. Screw this up and you can void your release as occurred in this ski racing case.

This is not the first decision I’ve read where the United States Ski Association (USSA) had its release laughed out of court. The court found ZERO legal arguments for the jurisdiction and venue clause in the release used.

Kearney, v. Okemo Limited Liability Company, 2016 U.S. Dist. LEXIS 106011

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

Plaintiff: Brian J Tierney

Defendant: Okemo Limited Liability Company, d/b/a Okemo Mountain Resort, and The United States Ski and Snowboard Association,

Plaintiff Claims: alleging negligent installation of safety netting during a downhill alpine ski race

Defendant Defenses: Release

Holding: for the plaintiff

Year: 2016

The United States Ski Association (USSA) has members sign a release online before they can participate in any USSA as a ski race. Ski areas rely on this release when holding USSA sanctioned races. The USSA release, however, is a poorly written document and time after time the ski areas, and the USSA lose a lawsuit by a plaintiff because they relied on the USSA release.

The number-one  reason why the USSA as a release is thrown out by the courts is the jurisdiction and venue clause. Jurisdiction is the law that will be applied case and venue is the actual location of where the trial will be held. The USSA release says the jurisdiction for any case is Colorado. The problem is unless the accident occurred in Colorado; no other relationship exists between Colorado and the parties to the lawsuit.

The USSA is based, located, in Utah. In this case, the defendant ski area was located in Vermont. There were zero relationships between the USSA in Utah the ski area in Vermont and the injured plaintiff who was from New York, and the state of Colorado.

Consequently, the court throughout the jurisdiction and venue clause and found as 99% of most courts would that the location of the lawsuit should be Vermont, the place where the accident happened.

Vermont, however, does not recognize releases. (See States that do not Support the Use of a Release.).

The plaintiff argued the release was invalid because a copy with his signature could not be produced. The plaintiff signed and agreed to the documentation, including the release when he became a member of the USSA. The plaintiff argued in court that he did not remember signing or agreeing to the release. However, the USSA could  show through their IT expert the only way that the plaintiff could have become a member of the USSA was by signing the release. You either had to click on and accept the release, or you could go no further in signing up to be a member of the USSA.

The plaintiff was injured while competing in amateur downhill ski race at the defendant ski area at Okemo Mountain resort. The USSA sanctioned the race. To be eligible to participate in the race a person had to be a USSA member, had to have conducted a visual inspection of course, and had to have taken at least two official training runs prior to the race.

The defendant filed a motion for summary judgment based on the release. This ruling denied the motion for summary judgment.

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

The court first commented on the jurisdiction and venue issue.

The release also contained a choice-of-law provision, which stated that it would be “construed in accordance with, and governed by the substantive laws of the State of Colorado, without reference to principles governing choice or conflict of laws.”

The court then went through the various arguments of the plaintiff and defendant concerning the motion to dismiss, first off, with the plaintiff’s argument that he never remembered signing the release could not have signed release. The court termed the online release as a clip wrap release. This means that the release could not have been rejected by the plaintiff because the website only allows you to go forward after clicking yes to the release.

Because the click-wrap technology does not permit the customer to continue to use the website, unless he or she clicks on the required box on the screen, courts have accepted proof of use at the site as evidence of the customer’s agreement.

The court stated that generally clip wrap releases are upheld. The court went through several different decisions where clip-wrap releases had been decided. The court concluded that the plaintiff had to have signed the release because the plaintiff admitted that he had been charged for his USSA membership on his credit card and received an email about his membership from the USSA. “Plaintiff admits that he received a confirmation email from USSA and that his credit card statement reflects a payment for his USSA membership.

The court then went into the choice of law clause. That means the jurisdiction and venue clause. A choice of law clause is not a clause that is controlled strictly by the contract.

Whenever there is a decision based on what law shall apply the law where the accident happened or where the court is sitting is the law that is applied to determine what law will apply. In many cases, such as this one, the choice of law decision leans toward granting the choice of law to the place where the test is being determined.

“The validity of a contractual choice-of-law clause is a threshold question that must be decided not under the law specified in the clause, but under the relevant forum’s choice-of-law rules governing the effectiveness of such clauses.” As this is a diversity action, the court looks to Vermont’s choice-of-law rules to determine which law applies.

A jurisdiction and venue clause is also not solely determined based on the four corners of the document. Meaning, just because you have a jurisdiction and venue clause in the document does not mean that is what is going to be upheld by the court. Here the court applied the choice of laws test as set forth in Vermont to determine what law should apply in governing where the suit in the law to be applied is suit to take place.

Simply put the court found there was no relationship between the choice of law clause in the release and the parties or where the accident occurred. The test for what choice of law applies a substantial relationship test. That means that the law that should be applied should be the one that has the greatest relationship to the parties and or the location of the incident giving rise to the lawsuit. In this case the court found, there was no relationship to the parties of the transaction. Plaintiff was a resident of New York the USSA was a Utah corporation, and the defendant ski area was a defendant was a Vermont location.

The arguments made by the USSA as an aid to justify Colorado’s choice of law clause were just plain weak. They argued that the majority of their races occurred in Colorado and that there was a good chance that the plaintiff would race in Colorado. The court found neither of those arguments to be persuasive.

The chosen state of Colorado has no “substantial relationship” to the parties or the transaction. Plaintiff is a resident of New York. USSA is a Utah corporation and Okemo is a Vermont entity. The incident in question did not occur in Colorado. The only facts Defendants have offered in sup-port of applying Colorado law to this case are: (1) Colorado is home to more USSA member clubs than any other state and hosts the majority of USSA’s major events, and (2) there was a possibility that Plaintiff could have competed in Colorado at some point during the relevant ski season. The court finds that such a tenuous and hypothetical connection does not vest in the state of Colorado a substantial relationship to the parties or specific transaction at issue in this case.

The court did find that Vermont had a substantial and significant interest in the transaction. The defendant was based in Vermont. The accident occurred in Vermont. The plaintiff was issued a lift ticket by the defendant ski area that required all disputes to be litigated in Vermont. The plaintiff participated in the inspection and training runs as well as the race in Vermont.

In contrast, Vermont’s relationship to the parties and transaction is significant. Okemo is a Vermont corporation, the competition was held in Vermont, Plaintiff was issued a lift ticket by Okemo requiring all disputes to be litigated in Vermont, Plaintiff participated in inspection and training runs in Vermont, and Plaintiff’s injury occurred in Vermont.

(Of note is the fact the court looked at the writing on the lift ticket as a quasi-contract. Rarely are lift tickets anything more than simple “signs” providing warnings rather than contracts or quasi contracts. See Lift tickets are not contracts and rarely work as a release in most states.)

The court then took apart the choice of law provision in the USSA release. It found no substantial relationship of the parties to the transaction in Colorado. The minimal facts offered by the USSA to support Colorado did not establish a reasonable basis for choosing Colorado.

The court also reasoned that finding Colorado as the applicable choice of law would violate a fundamental policy of Vermont law, which is releases for skiing or void under Vermont law.

First, applying Colorado law would undoubtedly produce a result contrary to a fundamental policy of Vermont. Whereas exculpatory clauses in ski contracts have been held to be enforceable under Colorado law, courts applying Vermont law consistently hold such re-leases to be void as contrary to important public policies of the state.

The court also found the Vermont had a materially greater interest in case then Colorado. Colorado’s interest in the case is minimal. Vermont had a great interest in applying Vermont law to issues, transactions and accidents that occur in Vermont. Skiing is a significant and important recreational activity in Vermont, and the Vermont Supreme Court has repeatedly stated that they have a significant interest in holding ski resorts responsible for skier safety in Vermont.

Second, Vermont has a “materially greater interest” than Colorado in the determination of this issue.4 Colorado’s interest in this case is minimal. The fact that Plaintiff may have competed there in the course of the relevant ski season and that USSA hosts many events in that state does not create a significant interest in a case concerning a Vermont ski race. Conversely, Vermont’s interest is plain. Vermont has a general interest in having its laws apply to contracts governing transactions taking place within the state. Vermont also has a significant interest in the conduct at issue here. Skiing is an important recreational activity for Vermonters and those visiting the state, and the Vermont Supreme Court has repeatedly noted its interest in holding ski resorts responsible for skier safety.

The court then held the choice of law provision in the USSA release did not control, and the Vermont law would apply to this case.

Under Vermont law releases for skiing activities are unenforceable. (See Federal court voids release in Vermont based on Vermont’s unique view of release law). The Vermont Supreme Court had determined that it was a violation of public policy under Vermont law to allow ski area to use a release to avoid liability for its own negligence. The court used a totality of the circumstances test to make the determination that the ski areas had the greater responsibility and the greater ability to keep its patrons out of harm’s way.

The Court concluded that “ultimately the determination of what constitutes the public interest must be made considering the totality of the circumstances of any given case against the backdrop of current societal expectations.” It then went on to make its public policy determination largely on the basis of two factors derived from the seminal case of Tunkl v. Regents of University of California, 383 P.2d 441 (Cal. 1963): (1) ski areas are open to the general public without regard to special training or ability, and (2) the longstanding rule that premises owners are in the best position to assure for the safety of their visitors.

(Using Tunkl to void a release seems to be an extremely odd reading of Tunkl. The Tunkl decision is a California case setting forth requirements for Assumption of the Risk.)

The court also looked at the difference between skiing in Vermont participating in a ski race. Here too though, the Vermont Supreme Court already ruled. The Vermont Supreme Court found that there was really no difference between ski racing and skiing in Vermont, and the releases would be void in both cases.

There had been Vermont decisions upholding release law based on restricted access to the race or because total control for the majority the control for the welfare of the racers was in the racer’s hands. These decisions concerned motorcycle racing.

The defendant argued that ski racing was much like motorcycle racing in Vermont. However, the court found that although membership in the motorcycle racing was restricted, it was not restricted in the ski racing case. Any person could become a member of the USSA, and any person could race, as long as they inspected the course and made two runs and. That effectively was not a bar to anyone participating in the race.

The Court saw “no salient distinctions between [its case] and making clear that, under Vermont law, ski areas and sport event organizers will not be absolved from liability by virtue of an exculpatory clause even in the context of amateur racing.

The court in evaluating the release law and ski areas in Vermont determined that the cases were based on a premise’s liability argument. Premise’s liability says that the owner of the land has a duty to inform guests of the risks on the land. This responsibility included eliminating any known risks or risk the by the landowner should discover. It did not find in the motorcycle cases that a premise’s liability relationship existed because the risk was largely in control of the racer on the motorcycle.

Consequently, the court ruled that the release was invalid under Vermont law, and dismissed the defendant’s motion for summary judgment.

So Now What?

I suspect that USSA wanted to take advantage of the Colorado Statute that allows a parent to sign away a minor’s right to sue: Colorado Revised Statutes 13-22-107. Colorado’s release law is clearer and there is no issue with a release stopping suits by ski areas. Utah has mixed issues with releases and ski areas. However, to use Colorado as the site of the lawsuit, there must be a nexus to the state of Colorado, not just one created on paper.

Not only must the language stating the jurisdiction and venue be correct; the clause must also contain the reasoning why the jurisdiction and venue should be in a location other than location where the accident happened. In this case that would mean that there was an agreement between the parties that outlined all the reasons why the lawsuit should be brought back to Utah would be the only state, based on the contractual law of Utah.

I doubt there is any way that you could really write a release based on the law of a state that had no relationship, no nexus, to the accident or the parties in the case.

Vermont was the obvious answer, and that is what the court found. They might’ve been able also argued New York law, which would’ve been better than Vermont law. However, that would require them to litigate a case wherever the people who are racing in their events are located.

To be effective the jurisdiction and venue claw must have a nexus to either the parties in the case of the place of the accident occurred. USSA could move to Colorado, and that would provide a much better argument that Colorado law could apply. The USSA could argue that since they’re facing litigation from across the United States that they need to have one law apply to their releases and lawsuits, and that law should be the law where the located.

Whenever you’re stretching the jurisdiction and venue clause, you need to make sure that you incorporate in the clause all the legal reasons for picking the venue where the clause says the accident or location will occur. You just can’t state venue, and jurisdiction will be here.

If you are interested in having me write your release, fill out this Information Form and Contract and send it to me.

What do you think? Leave a comment.

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

Author: Outdoor Recreation Insurance, Risk Management and Law

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Copyright 2017 Recreation Law (720) Edit Law

Email: Rec-law@recreation-law.com

Google+: +Recreation

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Facebook Page: Outdoor Recreation & Adventure Travel Law

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

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Kearney, v. Okemo Limited Liability Company, 2016 U.S. Dist. LEXIS 106011

Kearney, v. Okemo Limited Liability Company, 2016 U.S. Dist. LEXIS 106011

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The dissent in this case argues because the release was not presented to the plaintiff until he had traveled to the resort it should be void.

Case was moved from plaintiff’s town to the ski area home town based on the venue selection clause in equipment rental release. However the dissent would void venue selection clause because it was only presented to the plaintiff after the plaintiff traveled to the skis area. The dissenting judge had federal decisions that supported him.

Karlsberg v Hunter Mountain Ski Bowl, Inc., 131 A.D.3d 1121; 2015 N.Y. App. Div. LEXIS 6806; 2015 NY Slip Op 06890; 16 N.Y.S.3d 746

State: New York, Supreme Court of New York, Appellate Division, Second Department

Plaintiff: David Karlsberg

Defendant: Hunter Mountain Ski Bowl, Inc., doing business as Hunter Mountain

Plaintiff Claims: failed to provide him with proper instruction, causing him to sustain injuries while snowboarding at the defendant’s facility

Defendant Defenses: Release changes the venue

Holding: For the Defendant, venue changed

Year: 2015

This is a simple case. The plaintiff traveled to Hunter Mountain Ski Bowl, in upper New York. Upon arrival the plaintiff signed an equipment release. He rented a snowboard and took a snowboarding lesson. How he was injured was not in the decision.

The plaintiff filed suit in Suffolk County New York (Long Island). The equipment release the plaintiff signed had a jurisdiction clause that stated any lawsuits had to “be litigated exclusively in the Supreme Court of the State of New York, County of Greene, or in the United States District Court for the Northern District of New York.”

The trial court transferred the case and the plaintiff appealed.

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

The decision, a New York Appellate court decision was short. It simply said the trial court was correct. The decision reviewed the claims of the plaintiff for the reasons why the release should be voided.

Contrary to the plaintiff’s contentions, the “Equipment Rental Form and Release of Liability” was not an unenforceable contract of adhesion, and enforcement of the forum selection clause contained therein does not contravene public policy  Contrary to the plaintiff’s additional contention, the defendant’s motion was timely, inasmuch as it was made within a reasonable time after the commencement of the action

However, no reasons were given why the claims were denied.

The dissenting opinion was longer. The dissent basically argued “the better rule is one where forum selection clauses are not to be enforced if they are shown to consumers for the first time upon their arrival at a resort.”

The dissent then went through New York Law and case law from the federal courts in New York. The federal courts have upheld claims like the plaintiff’s that the release should be void because it was presented after the plaintiff had traveled and arrived at the destination.

However there was one prior case, almost identical to this one where the release was upheld even through claims of voiding the release because the plaintiff had traveled without knowing he or she would sign a jurisdiction and venue clause were denied. As such, the decisions from the state courts were controlling and basically “overruled” the federal court decisions because the decisions involved an interpretation of state law.

So Now What?

Avoid making the courts wonder about your relationship with the plaintiff and whether you attempted to hide information from the plaintiff or mislead the plaintiff. On your website and in your brochure tell prospective clients that they have to sign a release when they arrive.

Better, please the release online so they can review the release and see what they are signing. Releases are signed every day for all sorts of activities should it should be no shock that your clients will be signing one. Consequently don’t be afraid to be honest and tell them in advance.

If, upon arrival, a guest decides they don’t want to sign your release what are you going to do? The guest will have a valid claim for you to repay all of their money for the travel they incurred. Are you prepared to refund all of the money the guest spent with you and possibly repay what the guest spent to get to your destination?

Easier to post your release online and tell your clients in advance they have to sign it then to write a check when they find out and are upset about it.

clip_image002What do you think? Leave a comment.

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Karlsberg v Hunter Mountain Ski Bowl, Inc., 131 A.D.3d 1121; 2015 N.Y. App. Div. LEXIS 6806; 2015 NY Slip Op 06890; 16 N.Y.S.3d 746

Karlsberg v Hunter Mountain Ski Bowl, Inc., 131 A.D.3d 1121; 2015 N.Y. App. Div. LEXIS 6806; 2015 NY Slip Op 06890; 16 N.Y.S.3d 746

David Karlsberg, appellant, v Hunter Mountain Ski Bowl, Inc., doing business as Hunter Mountain, respondent. (Index No. 38816/11)

2014-05431

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT

131 A.D.3d 1121; 2015 N.Y. App. Div. LEXIS 6806; 2015 NY Slip Op 06890; 16 N.Y.S.3d 746

September 23, 2015, Decided

COUNSEL: [*1] The Berkman Law Office, LLC, Brooklyn, N.Y. (Robert J. Tolchin and Meir Katz of counsel), for appellant.

Carol A. Schrager, New York, N.Y. (Beth A. Willensky of counsel), for respondent.

JUDGES: JOHN M. LEVENTHAL, J.P., THOMAS A. DICKERSON, SHERI S. ROMAN, SYLVIA O. HINDS-RADIX, JJ. LEVENTHAL, J.P., ROMAN, and HINDS-RADIX, JJ., concur.

OPINION

[***746] DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Suffolk County (Pastoressa, J.), entered March 24, 2014, as, upon reargument, adhered to a prior determination in an order of the same court dated December 3, 2012, granting that branch of the defendant’s motion which was pursuant to CPLR 501 and 511 to change the venue of the action from Suffolk County to Greene County.

ORDERED that the order entered March 24, 2014, is affirmed insofar as appealed from, with costs.

On March 19, 2011, the plaintiff sought beginner snowboarding lessons at the defendant’s facility, and signed an “Equipment Rental Form and Release of Liability” that provided, among other things, that

“all disputes arising under this contract and/or the use of this equipment and/or the use of the facilities [*2] at Hunter Mountain Ski Bowl, shall be litigated exclusively in the Supreme Court of the State of New York, County of Greene, or in the United States District Court for the Northern District of New York.”

In December 2011, the plaintiff commenced this action in the Supreme Court, Suffolk County, alleging that an instructor employed by the defendant failed to provide him with proper instruction, causing him to sustain injuries while snowboarding at the defendant’s facility. In September 2012, the defendant moved, inter alia, pursuant to CPLR 501 and 511 to change the venue of the action from Suffolk County to Greene County.

Upon reargument, the Supreme Court properly adhered to its original determination [***747] granting that branch of the defendant’s motion which was pursuant to CPLR 501 and 511 to change the venue of the action from Suffolk County to Greene County. Contrary to the plaintiff’s contentions, the “Equipment Rental Form and Release of Liability” was not an unenforceable contract of adhesion, and enforcement of the forum selection clause contained therein does not [**2] contravene public policy (see Molino v Sagamore, 105 AD3d 922, 923, 963 N.Y.S.2d 355; KMK Safety Consulting, LLC v Jeffrey M. Brown Assoc., Inc., 72 AD3d 650, 651, 897 N.Y.S.2d 649; LSPA Enter., Inc. v Jani-King of N.Y., Inc., 31 AD3d 394, 395, 817 N.Y.S.2d 657). Contrary to the plaintiff’s additional contention, the defendant’s motion was timely, inasmuch as it was [*3] made within a reasonable time after the commencement of the action (see CPLR 511[a]; Medina v Gold Crest Care Ctr., Inc., 117 AD3d 633, 634, 988 N.Y.S.2d 578; Bonilla v Tishman Interiors Corp., 100 AD3d 673, 953 N.Y.S.2d 870).

LEVENTHAL, J.P., ROMAN, and HINDS-RADIX, JJ., concur.

CONCUR BY: DICKERSON

CONCUR

DICKERSON, J., concurs in the result, on constraint of Molino v Sagamore (105 AD3d 922, 963 N.Y.S.2d 355), with the following memorandum:

I vote with the majority on constraint of this Court’s precedent, but I write separately to express my view that the better rule is one where forum selection clauses are not to be enforced if they are shown to consumers for the first time upon their arrival at a resort.

In Molino, the injured plaintiff made a reservation to stay as a guest at a resort in Warren County (see id.). Upon arrival, and while registering for the stay, the injured plaintiff signed a document, entitled “Rental Agreement,” containing a provision stating that “if there is a claim or dispute that arises out of the use of the facilities that results in legal action, all issues will be settled by the courts of the State of New York, Warren County” (id.). After the injured plaintiff allegedly tripped and fell on the resort’s property, she, and her husband suing derivatively, commenced an action against the resort in the Supreme Court, Queens County (see id.). This Court held that the Supreme [*4] Court should have granted the defendant’s motion pursuant to CPLR 501 and 511 to change the venue of the action from Queens County to Warren County, concluding that the plaintiffs failed to demonstrate that: (1) enforcement of the forum selection clause would be unreasonable, unjust, or would contravene public policy; (2) the clause was invalid because of fraud or overreaching; or (3) a trial in the selected forum of Warren County would, for all practical purposes, deprive them of their day in court (see id. at 923).

In so holding, the Molino Court cited Carnival Cruise Lines, Inc. v Shute (499 U.S. 585, 111 S. Ct. 1522, 113 L. Ed. 2d 622) for the proposition that “the fact that the Rental Agreement containing the forum selection clause was presented to the plaintiffs at registration and was not the product of negotiation does not render it unenforceable” (Molino v Sagamore, 105 AD3d at 923). In Carnival Cruise Lines, the United States Supreme Court concluded that the United States Court of Appeals for the Ninth Circuit erred in refusing to enforce a forum selection clause contained on the face of cruise tickets issued to the plaintiffs in that case. However, the United States Supreme Court noted that it did not “address the question of whether [the plaintiffs] [***748] had sufficient notice of the forum selection clause before [*5] entering the contract for passage” (Carnival Cruise Lines, Inc. v Shute, 499 US at 590) because the plaintiffs had essentially conceded that they had notice of the forum selection provision and the Ninth Circuit had evaluated the enforceability of the forum clause under the assumption, although ” doubtful,'” that the passengers could be deemed to have knowledge of the clause (id., quoting Shute v Carnival Cruise Lines, 897 F2d 377, 389 n 11 [9th Cir]).

In Sun Trust Bank v Sun Intl. Hotels Ltd. (184 F Supp 2d 1246 [SD Fla]) and Foster v Sun Intl. Hotels, Ltd. (2002 WL 34576251, 2002 US Dist LEXIS 28475 [SD Fla, No. 01-1290-CIV]), the United States District Court for the Southern District of Florida concluded that forum selection clauses set forth in reservation forms that were not shown to consumers until they arrived at a resort were unenforceable because the consumers were not given an adequate opportunity to consider the clause and reject their contracts with the resort (see Foster v Sun Intl. Hotels Ltd., 2002 WL 34576251, *1, 2002 US Dist LEXIS 28475 *3-4; Sun Trust Bank v Sun Intl. Hotels Ltd., 184 F Supp 2d at 1261-1262). Similarly, in Ward v Cross Sound Ferry (273 F3d 520 [2d Cir]), the United States Court of Appeals for the Second Circuit held that a contractual statute of limitations clause set forth in a ticket issued to a cruise passenger just minutes before she boarded a ship, and then collected at boarding, was not enforceable because the circumstances did not permit the passenger to become meaningfully informed of the contractual terms at stake (see id. at 523-526). By contrast, where forum selection clauses have been sent [*6] to consumers or travel agents prior to the [**3] consumer’s arrival at the subject resort, or where consumers had visited the subject resort on previous occasions and signed forms containing similar forum selection clauses, the United States Court of Appeals for the Eleventh Circuit has found that the clauses were reasonably communicated to the consumers and, thus, enforceable (see McArthur v Kerzner Intl. Bahamas Ltd., 607 Fed. Appx. 845, 2015 WL 1404409, *1-2, 2015 US App LEXIS 5058, *6-7 [11th Cir, No. 14-138897]; Pappas v Kerzner Intl. Bahamas Ltd., 585 Fed Appx 962, 965-966 [11th Cir]; Estate of Myhra v Royal Caribbean Cruises, Ltd., 695 F3d 1233, 1246 [11th Cir]; Krenkel v Kerzner Intl. Hotels Ltd., 579 F3d 1279, 1282 [11th Cir]).

While I believe that the federal cases discussed above set forth the better rule, the doctrine of stare decisis dictates that we follow our prior decision in Molino, which is factually indistinguishable from this case in all relevant respects (see Matter of State Farm Mut. Auto Ins. Co. v Fitzgerald, 25 NY3d 799, 2015 NY Slip Op 05626 [2015]; Eastern Consol. Props. v Adelaide Realty Corp., 95 NY2d 785, 788, 732 N.E.2d 948, 710 N.Y.S.2d 840). Accordingly, I agree with the majority that the subject forum selection clause was enforceable, notwithstanding the fact that it was shown to the plaintiff for the first time upon his arrival at the defendant’s facility. I also agree with the majority’s other conclusions, and that, upon reargument, the Supreme Court properly adhered to its prior determination granting that branch of the defendant’s motion which was pursuant to CPLR 501 and 511 to change the venue of the action from Suffolk County to Greene County.


Poorly written release and allegation of duress push whitewater rafting ligation to Pennsylvania Appellate court.

Release probably not written by an attorney, signed in one state for rafting in another state and probably one where the economics suggest an insurance company is playing plaintiff.

Mcdonald v. Whitewater Challengers, Inc., 2015 PA Super 104; 116 A.3d 99; 2015 Pa. Super. LEXIS 232

State: Pennsylvania

Plaintiff: Erin Mcdonald

Defendant: Whitewater Challengers, Inc., and Whitewater Challengers Outdoor Adventure Center, T/D/B/A Whitewater Challengers, Inc.

Plaintiff Claims: a. Failing to provide a river guide / instructor in plaintiff’s boat;

b. Failing to provide a properly inflated raft;

c. Failing to advise Plaintiff on the grade and / or class of the whitewater rapids;

d. Failing to properly instruct Plaintiff on how to safely and effectively maneuver fast and difficult rapids; and

e. Allowing an unsafe number of inexperienced rafters to operate a raft.

Defendant Defenses: Release

Holding: For Defendants

Year: 2015

The plaintiff was a teacher at a school that brought 72 kids whitewater rafting with the defendant on the Lehigh River. The school was located, and the plaintiff lived in New York. The defendant was located and the Lehigh River, where the rafting occurred, was in Pennsylvania.

While still at work two days before the trip her supervisor handed a release which she signed. The release had a venue clause which means any lawsuit must be in Pennsylvania but not a jurisdiction clause.

While rafting the plaintiff’s boat struck a rock ejecting the plaintiff from the raft which injured her.

The plaintiff and defendant filed various motions prior to trial. The plaintiff wanted New York law to apply because she had signed the release in New York and was from New York. (The plaintiff wanted the suit brought under New York law because New York does not recognize releases. See States that do not Support the Use of a Release.) The defendant wanted Pennsylvania law to apply, which generally upholds releases.

The court ruled against both parties and denied the release because the plaintiff made an allegation that she was forced to sign the release (duress) therefore, the release should be void. The trial court approved a motion to appeal these issues prior to trial and the appellate court accepted the appeal.

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

The plaintiff started her argument with three theories on the location where the release was signed was the proper jurisdiction for interpreting the law, New York.  

The plaintiff also argued that because the defendant did not have a jurisdiction clause in its release, then obviously the defendant wanted New York law to apply.

Finally, she argued that because her medical bills and treatment would be generated and done in New York that law should apply.

She maintains that because she signed the release in New York, the contract was formed in New York. As a New York resident, McDonald asserts she is entitled to the benefit of New York law. McDonald claims that if Whitewater intended for Pennsylvania law to apply, then it should have included such a clause in its release. She points out that most of her medical treatment occurred in New York and that the New York State Insurance Fund has an interest in recouping her lost wages and medical expenses.

The court started its examination of the law to be applied by first looking at whether tort law or contract law applied. Tort law is the law of injuries and has different requirements to prove jurisdictional issues than contract law, which is what a release is. The court found that contract law applied without much analysis on how it came to that decision.

The court then looked at how a conflict of law’s decision was to be made by the courts when deciding in a contract basis where the contract is silent on the issue of jurisdiction.

…the first step in a choice of law analysis under Pennsylvania law is to determine whether [an actual] conflict exists between the laws of the competing states. If no [actual] conflict exists, further analysis is unnecessary. An actual conflict exists if “there are relevant differences between the laws.

The analysis of what law applies; New York or Pennsylvania is extensive. If only one state would be harmed (the interests of the party from that state), then the issue is a false conflict. If the interests of both states would be harmed (the residents of both states would be harmed) by the decision, then the issue is a true conflict issue. “In such a situation, the court must apply the law of the state whose interests would be harmed if its law were not applied.”

A third situation would exist if the parties of neither state would be harmed. This is called a “neither jurisdiction” issue. This occurs when the law of both states is identical.

In sum, in Pennsylvania, a conflict-of-law analysis not involving a statutory or contractual choice of law clause, first requires determining whether the laws in question actually conflict. If relevant differences between the laws exist, then we next classify the actual conflict as a “true conflict,” “false conflict,” or “unprovided-for conflict.”

Instantly, a New York statute voids clauses immunizing recreational facilities from liability for negligence because they violate New York’s public policy. Pennsylvania, however, recognizes the validity of such exculpatory clauses when they govern voluntary and hazardous recreational activities.

The court determined that this is a true conflict case where both parties would be harmed, based on their desire for the jurisdiction to be applied in their state.

The next issue once a true conflict has been determined is for the court to determine who (what state) would be harmed the most by a decision. “We thus ascertain whether New York “or Pennsylvania has the greater interest in the application of its law to the question now before us.

The actual analysis came down to how the court looked at the issues.

But, comparable to the insurance policy in Walter, the instant release was executed for the purpose of protecting Whitewater, a Pennsylvania business that “had the right to expect that [the release] conformed to [Pennsylvania] law and that the laws of [Pennsylvania] would apply in interpreting the [release].” “[I]t seems only fair to permit” Whitewater to rely on Pennsylvania law when it acted within Pennsylvania. Whitewater should not be placed in jeopardy of liability exceeding that created by Pennsylvania law just because McDonald is a visitor from New York, a state offering higher protection.

The court decided that the law of Pennsylvania would apply. Because the activity where the accident occurred giving rise to the litigation occurred in Pennsylvania the court determined Pennsylvania law would control.

After carefully weighing the sovereign interests at stake, which include contacts establishing the significant relationships with each sovereign, we hold that Pennsylvania has the greater interest in the application of its law to this case.

The court then went into the analysis of the plaintiff’s claim the release should be thrown out because it was signed under duress.

[McDonald] had testified in her deposition that on May 17, 2006, the Headmaster of the School of the Holy Child handed the Release form to [McDonald], while she was between classes and walking through the school hallway and told her to sign it, since she would be one of the chaperones for the students on the rafting trip.

[McDonald] alleges she signed the Release form without reading it.

The plaintiff stated she did not read the release; however, because she had been on a previous whitewater trip.

The plaintiff next argued that she had no choice but to sign the release because it was required by her job. The court then looked at the issues the plaintiff faced in her annual performance evaluations and found that she would not suffer financially if she had not gone on the trip, therefore, she could not claim she was forced to sign the release.

The defendant argued that it did not compel or force the plaintiff to sign the release. If anyone did, her employer did. Since her employer was not a party to the contract, the release, then there could not be any duress.

To constitute duress or business compulsion there must be more than a mere threat which might possibly result in injury at some future time, such as a threat of injury to credit in the indefinite future. It must be such a threat that, in conjunction with other circumstances and business necessity, the party so coerced fears a loss of business unless he does so enter into the contract as demanded.

Because the defendant was not the party “forcing” the plaintiff to sign she could walk away from the release.

Instantly, we frame Whitewater’s question as whether one party to a contract can invoke duress when that duress was allegedly imposed by a non-party and not by the other party to the contract. More precisely, we examine whether McDonald can void the release by claiming the School of the Holy Child economically compelled her to sign the release with Whitewater. McDonald’s presumption is that economic compulsion, i.e., duress, by a non-party to a contract can be “transferred.”

Because the plaintiff was free to walk away from the rafting trip and consequently, the release, the court agreed with the defendant and found there was no duress. “It follows that the School of the Holy Child could not elicit the assent of McDonald by duress.”

Nor did the plaintiff ever claim that the defendant compelled her to sign the release, the only party that a claim of duress against whom the claim could be found. The defendant provided recreational services, which are not something that a claim of duress can be used.

Because a release is not a contract of adhesion, the plaintiff was not forced to sign it.

Thus, an exculpatory clause is not typically analyzed within the framework of whether it is a contract of adhesion. (“The signer is under no compulsion, economic or otherwise, to participate, much less to sign the exculpatory agreement, because it does not relate to essential services, but merely governs a voluntary recreational activity.”).

The court found that the plaintiff could not be compelled by anyone and was not compelled by the defendant to sign the release.

The court then looked at whether the release was viable under Pennsylvania law.

It is generally accepted that an exculpatory clause is valid where three conditions are met. First, the clause must not contravene public policy. Secondly, the contract must be between persons relating entirely to their own private affairs and thirdly, each party must be a free bargaining agent to the agreement so that the contract is not one of adhesion.

If the release is found to be valid, it must still be examined under Pennsylvania to see if it meets four more tests.

…unless the language of the parties is clear that a person is being relieved of liability for his own acts of negligence. In interpreting such clauses we listed as guiding standards that: 1) the contract language must be construed strictly, since exculpatory language is not favored by the law; 2) the contract must state the intention of the parties with the greatest particularity, beyond doubt by express stipulation, and no inference from words of general import can establish the intent of the parties; 3) the language of the contract must be construed, in cases of ambiguity, against the party seeking immunity from liability; and 4) the burden of establishing the immunity is upon the party invoking protection under the clause.

The court looked at Pennsylvania law and found releases were valid for inherently dangerous sporting activities.

Regarding the first element needed for a valid exculpatory clause, Pennsylvania courts have affirmed exculpatory releases for “skiing and other inherently dangerous sporting activities,” such as snowtubing and motorcycle racing. Other activities include automobile racing, paintballing, and whitewater rafting. Thus, Pennsylvania courts have held exculpatory clauses pertaining to inherently dangerous sporting activities do not “contravene any policy of the law.”

The court also found the release would be valid if it was between two parties for their own private affairs.

With respect to the second element, our Supreme Court held “[t]he validity of a contractual provision which exculpates a person from liability for his own acts of negligence is well settled if the contract is between persons relating entirely to their own private affairs.”

The court then examined the release and found it spells out the intention of the parties with particularity and shoes the intent of the parties to release the defendant from liability.

The court held the release was enforceable.

So Now What?

This case is long but brings up some interesting arguments to void releases and does a good job of explaining Pennsylvania law on releases.

First the argument that by leaving a specific clause out of a release is proof the person offering the release agrees to the lack of the clause is very scary. Most releases out there leave out a lot. I signed one the other day for an activity that left out both a jurisdiction and venue clause. I signed the release in Nevada where activity occurred. If injured, I would be allowed to sue the California Corporation in Nevada because by not putting the clause in the release it agreed to jurisdiction different from the venue clause.

Thankfully, this argument did not fly. However, it will be picked up in the future and used more often. You cannot tell when a judge or appellate panel will adopt it.

The duress argument is also valid. Duress cannot occur for recreational activities because like the public policy argument, the guest is free to walk away and loses nothing necessary for life. The duress argument is another one that might be brought when the person on the trip is therefore, more than their own enjoyment.

If they are an employee or volunteer of a church or other youth group, if they are required to do public service if they have an employer who wants them to participate, the argument is valid for duress; however, the wrong defendant is being sued. The duress must be brought by the person you are suing to void the release, not the person who made you sign it.

At the same time, it brings up the argument that this might be a subrogation claim brought by the plaintiff’s health insurance carrier or possibly worker’s compensation carrier. If the plaintiff was successful in arguing that the whitewater rafting, trip was part of her employment her injuries, lost wages, and other expenses would be covered by worker’s compensation. Her worker’s compensation insurance carrier then using the subrogation clause in the policy would have the right to sue any party that was the cause for the injuries.

A defense available to the plaintiff also bars any claims made by the insurer when applying the subrogation clause to sue. So a release signed by the plaintiff stops her lawsuit and also here insurer’s lawsuit.

Not having an enforceable jurisdiction clause in a release sent this litigation from the trial court to the appellate court and back again. In this case, it took nine years from the date of the accident, May 2006, and seven years from the start of the lawsuit, July 2008, for the case to be settled. The addition of “and jurisdiction” to the release would have probably ended the case before it got started.

Think about the stress of dealing with a lawsuit against you for seven years.

If you think, the analysis is painful to read, it is. The decision is 27 pages long. There is an entire semester of class on this one subject in law school called “Choice of Laws.” The analysis each time one party claims the lawsuit should be somewhere else or the law applied to the case should be other states not the state where the lawsuit is, is extensive. These cases also take forever.

A case where a person died on a river trip in Arizona was brought in Texas. Six years after the death the Texas Supreme Court sent the case to Arizona where it started all over again. Moki Mac River Expeditions, v. Drugg, 221 S.W.3d 569; 2007 Tex. LEXIS 188; 50 Tex. Sup. J. 498

Of note in the decision but not brought out in the decision was the fact the defendant does not put a guide in every boat on this section of the Lehigh River. One of the claims made by the plaintiff was “a. Failing to provide a river guide / instructor in [McDonald’s] boat;…

For more articles on Jurisdiction and Venue see:

A Recent Colorado Supreme Court Decision lowers the requirements to be brought into the state to defend a lawsuit.                                                                                                     http://rec-law.us/zfpK8Z

Buy something online and you may not have any recourse if it breaks or you are hurt    http://rec-law.us/1rOEUQP

Four releases signed and all of them thrown out because they lacked one simple sentence!     http://rec-law.us/vZoa7x

Jurisdiction and Venue (Forum Selection clauses) are extremely important in your releases.    http://rec-law.us/1ggLMWR

Jurisdiction in Massachusetts allows a plaintiff to bring in Salomon France to the local court.   http://rec-law.us/zdE1uk

Shark Feeding Death triggers debate                                                                  http://rec-law.us/A1BmMF

The legal relationship created between manufactures and US consumers http://rec-law.us/tiyChu

This case is a summer camp lawsuit and the decision looks at venue and jurisdiction; however the complaint alleges medical malpractice against a camp!                                   http://rec-law.us/yCRj3U

What do you think? Leave a comment.

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Copyright 2015 Recreation Law (720) Edit Law

Email: Rec-law@recreation-law.com

Google+: +Recreation

Twitter: RecreationLaw

Facebook: Rec.Law.Now

Facebook Page: Outdoor Recreation & Adventure Travel Law

Blog: www.recreation-law.com

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

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

 

 

#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, Whitewater Rafting, Rafting, Jurisdiction, Venue, Lehigh River, Guide, Guided River Trip, Contract of Adhesion, Economic Compulsion. Duress,

 


Mcdonald v. Whitewater Challengers, Inc., 2015 PA Super 104; 116 A.3d 99; 2015 Pa. Super. LEXIS 232

Mcdonald v. Whitewater Challengers, Inc., 2015 PA Super 104; 116 A.3d 99; 2015 Pa. Super. LEXIS 232

Erin Mcdonald, Appellee v. Whitewater Challengers, Inc., and Whitewater Challengers Outdoor Adventure Center, T/D/B/A Whitewater Challengers, Inc., Appellants; Erin Mcdonald, Appellant v. Whitewater Challengers, Inc., and Whitewater Challengers Outdoor Adventure Center, T/D/B/A Whitewater Challengers, Inc., Appellees

No. 1221 MDA 2013, No. 1400 MDA 2013

SUPERIOR COURT OF PENNSYLVANIA

2015 PA Super 104; 116 A.3d 99; 2015 Pa. Super. LEXIS 232

April 29, 2015, Decided

April 29, 2015, Filed

PRIOR HISTORY: [**1] Appeal from the Order Entered March 28, 2013. In the Court of Common Pleas of Luzerne County. Civil Division No(s).: 6750-CV-2008. Appeal from the Order Entered March 28, 2013. In the Court of Common Pleas of Luzerne County. Civil Division No(s).: 6750-CV-2008.

JUDGES: BEFORE: PANELLA, SHOGAN, and FITZGERALD,1 JJ. OPINION BY FITZGERALD, J.

1 Former Justice specially assigned to the Superior Court.

OPINION BY: FITZGERALD

OPINION

[*101] OPINION BY FITZGERALD, J.:

Appellant/Cross-Appellee, Erin McDonald, appeals from the order entered in the Luzerne County Court of Common Pleas denying her motion for partial summary [*102] judgment adverse to Appellees/Cross-Appellants, Whitewater Challengers, Inc., a Pennsylvania corporation, and Whitewater Challengers Outdoor Adventure Center, trading or doing business as Whitewater Challengers, Inc. (collectively, “Whitewater”). McDonald, a New York resident, suggests the trial court erred by holding Pennsylvania law–and not New York law–applies to this case. Whitewater also appeals from the order denying their motion for summary judgment. Whitewater contends the trial court erred by concluding material issues of fact existed regarding whether McDonald was economically compelled to sign the contract [**2] at issue. We hold that when a New York resident signs an exculpatory release with a Pennsylvania corporation engaged in the business of whitewater rafting in Pennsylvania and is injured while whitewater rafting, Pennsylvania law applies. We further hold that McDonald cannot invoke economic compulsion against Whitewater and that judgment should be entered in Whitewater’s favor on liability. Thus, we affirm in part and reverse in part.

We state the facts as set forth by the trial court:

[McDonald] filed a complaint on [July] 24, 2008[,] alleging that on May 19, 2006, she was a school teacher employed by [t]he School of [the] Holy Child in Rye, New York.

She alleges that on [May 19, 2006], she and other School faculty members chaperoned seventy-two (72) seventh and eighth grade school children on a whitewater rafting “field trip” down a portion of the Lehigh River conducted by [Whitewater].

[McDonald’s] raft struck a large rock situated in the river bed, ejecting [her] from the raft onto the rock, allegedly causing her the injuries alleged in her complaint.

[McDonald’s] allegations of negligence, in paragraph 40 of her complaint, are as follows:

40. [Whitewater’s] negligence consisted of but was [**3] not limited to the following:

a. Failing to provide a river guide / instructor in [McDonald’s] boat;

b. Failing to provide a properly inflated raft;

c. Failing to advise [McDonald] on the grade and / or class of the whitewater rapids;

d. Failing to properly instruct [McDonald] on how to safely and effectively maneuver fast and difficult rapids; and

e. Allowing an unsafe number of inexperienced rafters to operate a raft.

[McDonald’s Compl., 7/24/08, at 9-10.]

At her place of employment, two (2) days before the excursion, [McDonald] signed [Whitewater’s] form “RELEASE OF LIABILITY” . . . .

Trial Ct. Op., 9/15/10, at 1-2.

We reproduce the release in pertinent part:

RELEASE OF LIABILITY — READ BEFORE SIGNING

In consideration of being allowed to participate in any way in the Whitewater Challengers program, its related events and activities, I (print name) Erin L. McDonald the undersigned, acknowledge, appreciate, and agree, that:

1. The risk of injury from the activities involved in this program is significant, including the potential for permanent paralysis and death, and while particular skills, equipment, and personal discipline may reduce [*103] this risk, the risk of serious injury does exist; and,

2. [**4] I KNOWINGLY AND FREELY ASSUME ALL SUCH RISKS, both known and unknown, EVEN IF ARISING FROM THE NEGLIGENCE OF THE RELEASEES or others, and I assume full responsibility for my participation; and

* * *

5. I, for myself and on behalf of my heirs, assigns, personal representatives and next of kin, HEREBY RELEASE, INDEMNIFY, AND HOLD HARMLESS, WHITEWATER CHALLENGERS, their officers, officials, agents and/or employees, other participants, sponsoring agencies, sponsors, advertisers, and, if applicable, owners and lessors of premises used for the activities (“Releasees”), WITH RESPECT TO ANY AND ALL INJURY, DISABILITY, DEATH, or loss or damage to person or property associated with my presence or participation, WHETHER ARISING FROM THE NEGLIGENCE OF THE RELEASEES OR OTHERWISE, to the fullest extent permitted by law; and,

6. Any claims or disputes arising from my participation in this program shall be venued in the Luzerne County Court in the town of Wilkes-Barre, PA, or in the Supreme Court of the State of Pennsylvania.

I HAVE READ THIS RELEASE OF LIABILITY AND ASSUMPTION OF RISK AGREEMENT. I FULLY UNDERSTAND ITS TERMS AND UNDERSTAND THAT I HAVE GIVEN UP SUBSTANTIAL RIGHTS BY SIGNING IT, AND SIGN [**5] IT FREELY AND VOLUNTARILY WITHOUT ANY INDUCEMENT.

Ex. D to Whitewater’s Mot. for Summ. J., 12/14/12.

On June 6, 2010, Whitewater filed a motion for summary judgment, which the court denied on September 15, 2010. Further discovery ensued, and a few years later, McDonald filed her motion for partial summary judgment and Whitewater filed a second motion for summary judgment. McDonald requested that the court void the release based on New York law. Whitewater asked the court to hold the release was valid under Pennsylvania law and to enforce the release, thus absolving it of liability.

On April 3, 2013,1 the trial court denied McDonald’s motion for partial summary judgment and Whitewater’s motion for summary judgment. Order, 4/3/13. With respect to its holding that Pennsylvania law applied, the court reasoned that our Supreme Court affirmed the validity of such exculpatory releases in inherently dangerous recreational activities, such as downhill skiing. Trial Ct. Op., 4/3/14, at 2-3.2 The trial court also refused to permit out-of-state customers of Pennsylvania recreational facilities “to bring their law with them,” because of the increased “financial/liability uncertainty.” Id. at 3. The court, however, [**6] refused to enforce the release against McDonald, finding material issues of fact existed regarding whether she was economically compelled to sign the release by the School of the Holy Child. Trial Ct. Op., 9/15/10, at 5.

1 The order was served on this date pursuant to Pa.R.C.P. 236; the order was time-stamped on March 28, 2013.

2 On March 13, 2014, this Court ordered the trial court to file a Pa.R.A.P. 1925(a) decision explaining the basis for its ruling. Order, 3/13/14. The trial court complied, and this matter is now ripe for disposition.

On April 18, 2013, Whitewater filed a brief in support of their motion for reconsideration [*104] or appellate certification.3 On April 25, 2013, McDonald filed a motion for reconsideration or appellate certification. The court granted Whitewater’s motion on May 2, 2013,4 and granted McDonald’s motion on May 28, 2013.5

3 The docket and certified record do not reflect the actual motion, although Whitewater’s certificate of service avers they filed it. The certificate of service, which did not include a date of service, was time-stamped on April 18, 2013.

4 The order was time-stamped on April 30, 2013, but the trial court did not serve notice until May 2, 2013.

5 The order was time-stamped on May 23, 2013, [**7] and the trial court served notice on May 28, 2013.

On May 28, 2013, Whitewater filed a petition for permission to file an interlocutory appeal per Pa.R.A.P. 1311. McDonald, on June 21, 2013, filed a petition to file an interlocutory appeal from the trial court’s May 28, 2013 order. This Court granted Whitewater’s petition on July 11, 2013, and McDonald’s petition on August 5, 2013.6

6 This Court consolidated both appeals sua sponte on March 12, 2014. Further, because the parties filed numerous briefs in both appeals, for ease of comprehension, we denote the parties’ briefs by docket number.

We address McDonald’s appeal first, which raises one issue:

Whether New York law should be applied to the facts of this case thereby rendering Whitewater’s Release as void and unenforceable under New York’s statutory and decisional law, where this case poses a legitimate conflict-of-law question, and New York has a more significant relationship to this controversy and the outcome of this case?

McDonald’s Brief, 1400 MDA 2013, at 6.

In support of her sole issue, McDonald argues the trial court erred by incorrectly applying the standard set forth in Griffith v. United Air Lines, Inc., 416 Pa. 1, 203 A.2d 796 (1964). She maintains that because she signed the release in New York, the contract was formed in New York. As a New [**8] York resident, McDonald asserts she is entitled to the benefit of New York law. McDonald claims that if Whitewater intended for Pennsylvania law to apply, then it should have included such a clause in its release. She points out that most of her medical treatment occurred in New York and that the New York State Insurance Fund has an interest in recouping her lost wages and medical expenses. We hold McDonald has not established entitlement to relief.

Initially, an order denying summary judgment is ordinarily a non-appealable interlocutory order. See Stewart v. Precision Airmotive, LLC, 2010 PA Super 168, 7 A.3d 266, 272 (Pa. Super. 2010). As noted above, however, the parties requested, and this Court granted, permission to file interlocutory appeals.7 Order, 3/12/14.

7 We acknowledge that [HN1] generally, when the issue is a question of law, an appellant may be entitled to review of an order denying summary judgment. Pridgen v. Parker Hannifin Corp., 588 Pa. 405, 421-22, 905 A.2d 422, 432-33 (2006) (holding collateral order doctrine applied to order denying summary judgment because party raised defense of statutory immunity). When the issue is a question of fact, appellate jurisdiction is lacking. See Stewart, 7 A.3d at 272. Thus, if an appellate court grants permission to appeal an order denying summary judgment, see 42 Pa.C.S. § 702, but later determines that the underlying issue is a question of [**9] fact, appellate jurisdiction is arguably lacking. See generally id.

The standard and scope of review is well-settled:

[HN2] Pennsylvania law provides that summary judgment may be granted only in [*105] those cases in which the record clearly shows that no genuine issues of material fact exist and that the moving party is entitled to judgment as a matter of law. The moving party has the burden of proving that no genuine issues of material fact exist. In determining whether to grant summary judgment, the trial court must view the record in the light most favorable to the nonmoving party and must resolve all doubts as to the existence of a genuine issue of material fact against the moving party. Thus, summary judgment is proper only when the uncontroverted allegations in the pleadings, depositions, answers to interrogatories, admissions of record, and submitted affidavits demonstrate that no genuine issue of material fact exists, and that the moving party is entitled to judgment as a matter of law. In sum, only when the facts are so clear that reasonable minds cannot differ, may a trial court properly enter summary judgment. With regard to questions of law, an appellate court’s scope of review is plenary. [**10] The Superior Court will reverse a grant of summary judgment only if the trial court has committed an error of law or abused its discretion.

Charlie v. Erie Ins. Exchange, 2014 PA Super 188, 100 A.3d 244, 250 (Pa. Super. 2014) (punctuation and citation omitted).

As a prefatory matter, we must ascertain whether to apply a tort or contract choice of law framework.8 Two cases are instructive: McCabe v. Prudential Prop. & Cas. Ins. Co., 356 Pa. Super. 223, 514 A.2d 582 (1986), and Nationwide Mut. Ins. Co. v. Walter, 290 Pa. Super. 129, 434 A.2d 164 (1981). In Walter, this Court addressed an exclusionary provision in an insurance policy issued to a New Jersey resident for a car involved in a Pennsylvania accident. Walter, 290 Pa. Super. at 133-34, 434 A.2d at 166. The car’s driver and passenger were both Pennsylvania residents. Id. at 137, 434 A.2d at 168. The exclusionary provision was invalid under New Jersey law and valid under Pennsylvania law. Id. at 135-36, 434 A.2d at 167. The Walter Court rejected the appellant’s argument that Pennsylvania law should apply because the accident occurred in Pennsylvania and the injured occupants of the car were Pennsylvania residents:

[The a]ppellant argues that Pennsylvania had the most significant contacts as the car was located in Pennsylvania when the accident occurred having been previously delivered to Bucks County Imports by [the insured], the accident occurred in Pennsylvania, and both occupants of the car at the time of the accident were Pennsylvania residents. [The a]ppellant overlooks [**11] the fact that these points of contact with Pennsylvania pertained to the alleged tort involved. We are concerned with the contract of insurance and as to the insurance policy New Jersey had the most significant contacts.

Id. at 137-38, 434 A.2d at 168.

8 A statutory choice of law analysis does not apply to this case.

In McCabe, this Court similarly addressed which state’s law applied in construing a Connecticut automobile insurance policy issued to a Connecticut resident. McCabe, 356 Pa. Super. at 225, 514 A.2d at 582. While in Pennsylvania, the Connecticut resident was involved in a car accident that injured a Pennsylvania resident. Id. The McCabe appellees argued that Pennsylvania law applied because, inter alia, the “victim is a resident of Pennsylvania, and the accident occurred there. Both [insurers] are licensed to do business in Pennsylvania.” Id. at 232, 514 A.2d at 586. The McCabe Court rejected that argument [*106] based upon the Walter Court’s reasoning. Id. Both Walter and McCabe stand for the proposition that [HN3] in a contract action involving an underlying tort and in which an insurance policy is at issue, the court will apply a contract law–and not a tort law–choice of law framework. Id.; Walter, 290 Pa. Super. at 137-38, 434 A.2d at 168; see also Tayar v. Camelback Ski Corp., 616 Pa. 385, 394, 47 A.3d 1190, 1196 (2012) (applying contract law to interpret clause exculpating defendant ski resort from liability [**12] in negligence action); Chepkevich v. Hidden Valley Resort, L.P., 607 Pa. 1, 26, 2 A.3d 1174, 1189 (2010) (same). Neither Chepkevich nor Tayar engaged in a choice of law analysis, but neither case looked beyond contract law in construing the clause. Thus, in the instant tort action involving a contractual exculpatory clause, but not involving an automobile insurance policy, we apply a contract choice of law framework. See Tayar, 616 Pa. at 394, 47 A.3d at 1196; Chepkevich, 607 Pa. at 26, 2 A.3d at 1189; McCabe, 356 Pa. Super. at 232, 514 A.2d at 586; Walter, 290 Pa. Super. at 137-38, 434 A.2d at 168; cf. Lahey v. Covington, 964 F. Supp. 1440, 1445 (D. Colo. 1996) (construing exculpatory agreement as barring plaintiff’s negligence claims for injuries that occurred while whitewater rafting); Bauer v. Aspen Highlands Skiing Corp., 788 F. Supp. 472, 474 (D. Colo. 1992) (invoking contractual standard of review in ascertaining whether exculpatory clause barred negligence claims).9

9 In Budtel Assocs., LP v. Cont’l Cas. Co., 2006 PA Super 370, 915 A.2d 640 (Pa. Super. 2006), our Court held that the Griffith rule applies to contract cases. Id. at 643-44. Budtel, however, did not involve a negligence claim.

Having ascertained a contract choice of law framework applies, we set forth the following as background10 with respect to choice of law principles applicable to cases not involving an explicit statutory11 or a contractual choice of law provision:12 [HN4] “the first step in a choice of law analysis under Pennsylvania law is to determine whether [an actual] conflict exists between the laws of the competing states. If no [actual] conflict exists, further analysis is unnecessary.” Budtel, 915 A.2d at 643 (citation [**13] omitted). An actual conflict exists if “there are relevant differences between the laws.” Hammersmith v. TIG Ins. Co., 480 F.3d 220, 230 (3d Cir. 2007).13

10 See Gregory E. Smith, Choice of Law in the United States, 38 Hastings L.J. 1041, 1131 (1987) (“No state has a more convoluted, eclectic approach to choice of law than Pennsylvania. On various occasions, its courts have applied the First and Second Restatements, the center of gravity approach, interest analysis and Professor Cavers’ ‘principles of preference.'”); accord Melville v. Am. Home Assurance Co., 443 F. Supp. 1064, 1076 (E.D. Pa. 1977) (“The opinions of the Pennsylvania courts both state and federal have left Pennsylvania’s choice of law rules and methodology with respect to contract cases in utter disarray; indeed, the courts have used facially inconsistent legal standards without acknowledging apparently conflicting precedent.”), rev’d, 584 F.2d 1306, 1313 (3d Cir. 1978) (predicting Pennsylvania would apply the Griffith choice of law framework to contract actions).

11 See, e.g., 42 Pa.C.S. § 5521(b) (“The period of limitation applicable to a claim accruing outside this Commonwealth shall be either that provided or prescribed by the law of the place where the claim accrued or by the law of this Commonwealth, whichever first bars the claim.”).

12 Synthes USA Sales, LLC v. Harrison, 2013 PA Super 324, 83 A.3d 242, 252 (Pa. Super. 2013) (“Choice of law provisions in contracts will generally be given effect.” (citation omitted)); Nationwide Mut. Ins. Co. v. West, 2002 PA Super 282, 807 A.2d 916, 920 (Pa. Super. 2002) (same).

13 With [**14] respect to federal decisions, we acknowledge the following:

[F]ederal court decisions do not control the determinations of the Superior Court. Our law clearly states that, absent a United States Supreme Court pronouncement, the decisions of federal courts are not binding on Pennsylvania state courts, even when a federal question is involved. . . . Whenever possible, Pennsylvania state courts follow the Third Circuit so that litigants do not improperly “walk across the street” to achieve a different result in federal court than would be obtained in state court.

NASDAQ OMX PHLX, Inc. v. PennMont Secs., 2012 PA Super 145, 52 A.3d 296, 303 (Pa. Super. 2012) (citations omitted); accord Parr v. Ford Motor Co., 2014 PA Super 281, 109 A.3d 682, 693 n.8 (Pa. Super. 2014) (en banc) (citations and punctuation omitted).

[*107] If an actual conflict exists, then we classify it as “true,” “false,” or “unprovided-for.” Cipolla v. Shaposka, 439 Pa. 563, 565, 267 A.2d 854, 855-56 (1970); Miller v. Gay, 323 Pa. Super. 466, 470, 470 A.2d 1353, 1355 (1983). A “true conflict” occurs “when the governmental interests of both jurisdictions would be impaired if their law were not applied.” Garcia v. Plaza Oldsmobile, Ltd., 421 F.3d 216, 220 (3d Cir. 2005). “A ‘false conflict’ exists if only one jurisdiction’s governmental interests would be impaired by the application of the other jurisdiction’s law. In such a situation, the court must apply the law of the state whose interests would be harmed if its law were not applied.”14 Lacey v. Cessna Aircraft Co., 932 F.2d 170, 187 (3d Cir. 1991) (footnote omitted); Kuchinic v. McCrory, 422 Pa. 620, 624, 222 A.2d 897, 899 (1966). In “unprovided-for” cases, “neither jurisdiction’s [**15] interests would be impaired if its laws are not applied.”15 Garcia, 421 F.3d at 220 (footnote omitted). If a true conflict is found, then we must determine “which state has the greater interest in the application of its law.”16 Cipolla, 439 Pa. at 566, 267 A.2d at 856.

14 We are aware that Pennsylvania federal and state courts have defined “false conflict” inconsistently. Upon reflection, we agree with the rationale advanced by the United States Court of Appeals for the Third Circuit in Hammersmith:

We think it is incorrect to use the term “false conflict” to describe the situation where the laws of two states do not differ. If two jurisdictions’ laws are the same, then there is no conflict at all, and a choice of law analysis is unnecessary. Thus, the first part of the choice of law inquiry is best understood as determining if there is an actual or real conflict between the potentially applicable laws. See, e.g., [Air Prods. & Chems., Inc. v. Eaton Metal Prods. Co., 272 F. Supp. 2d 482, 490 n.9 (E.D. Pa. 2003)] (“Before we even reach the ‘false conflict’ question, we must determine whether, for lack of better terminology, a ‘real conflict’ as opposed to ‘no conflict’ exists; that is, we must determine whether these states would actually treat this issue any differently.”).

Hammersmith, 480 F.3d at 230.

15 We leave for another day a determination of which state’s law applies in an [**16] “unprovided-for conflict” in contract cases. In tort cases, generally, the law of the state where the injury occurred is applied. See Miller, 323 Pa. Super. at 470-72, 470 A.2d at 1355-56.

16 If there is more than one issue, then Pennsylvania applies dépeçage, i.e., “different states’ laws may apply to different issues in a single case . . . .” Berg Chilling Sys., Inc. v. Hull Corp., 435 F.3d 455, 462 (3d Cir. 2006) (citation omitted); Broome v. Antlers’ Hunting Club, 595 F.2d 921, 924 (3d Cir. 1979) (predicting Pennsylvania Supreme Court would apply law of different states to separate issues). Although no court in this Commonwealth has explicitly held that Pennsylvania applies dépeçage, Pennsylvania federal courts have consistently applied the doctrine. Furthermore, the doctrine is arguably suggested by, if not harmonious with, the Griffith Court’s flexible choice of law framework. See Griffith, 416 Pa. at 21, 203 A.2d at 805. The United States Court of Appeals for the Third Circuit observed that dépeçage was implicit in Professor Cavers’ choice of law analysis, which our Supreme Court approvingly quoted in Cipolla. See Reyno v. Piper Aircraft Co., 630 F.2d 149, 167 n.73 (3d Cir. 1980) (holding dépeçage is “implicit in the analysis of Professor Cavers” (citing David Cavers, The Choice-of-Law Process 40-43 (1965))), rev’d on other grounds, 454 U.S. 235, 102 S. Ct. 252, 70 L. Ed. 2d 419 (1981); Cipolla, 439 Pa. at 567, 267 A.2d at 856-57 (quoting Cavers’ treatise, supra, extensively).

[*108] In Cipolla, our Supreme Court examined whether a true conflict existed between the tort [**17] laws of Delaware and Pennsylvania. Id. at 564, 267 A.2d at 855. The defendant was a Delaware resident and the plaintiff was a Pennsylvania resident. Id. The defendant, who was driving a car registered in Delaware, was driving the plaintiff home to Pennsylvania when they collided with another vehicle in Delaware. Id. The plaintiff sued the defendant for negligence only, and our Supreme Court examined which state’s law applied. Id. If Delaware law applied, then the plaintiff could not recover under a Delaware statute preventing a guest from recovering for the negligence of the host. Id. If Pennsylvania law applied, then the plaintiff could recover if he could establish the defendant’s negligence. Id. at 564-65, 267 A.2d at 855. The Cipolla Court reasoned that a true conflict existed because the plaintiff “is a resident of Pennsylvania which has adopted a plaintiff-protecting rule and [the defendant] is a resident of Delaware which has adopted a defendant-protecting rule” and thus a “deeper analysis” was required to determine “which state has the greater interest in the application of its law.” Id. at 565-66, 267 A.2d at 856.

Similarly, in Rosen v. Tesoro Petroleum Corp., 399 Pa. Super. 226, 582 A.2d 27 (1990), the Superior Court ascertained whether a true conflict existed between the laws of Pennsylvania and Texas regarding a malicious prosecution [**18] claim. Id. at 231, 582 A.2d at 30. In Pennsylvania, seizure of the plaintiff’s person or property is not a necessary element for malicious prosecution. Id. Texas, however, requires that a party alleging malicious prosecution suffer physical detention of the claimant’s person or property. Id. The Rosen Court held there was a true conflict because Texas wished “to assure every potential litigant free and open access to the judicial system without fear of a countersuit for malicious prosecution.” Id. at 232, 582 A.2d at 30. Pennsylvania, in contrast, provided “greater protection to those individuals and entities who may be forced to defend a baseless suit.” Id. at 233, 582 A.2d at 31. Thus, having concluded a true conflict existed, the Rosen Court then determined which state had “the greater interest in the application of its law on malicious prosecution to the instant matter.” Id. at 233, 582 A.2d at 31.

In sum, [HN5] in Pennsylvania, a conflict-of-law analysis not involving a statutory or contractual choice of law clause, first requires determining whether the laws in question actually conflict. E.g., Budtel, 915 A.2d at 643. If relevant differences between the laws exist, then we next classify the actual conflict as a “true conflict,” “false conflict,” or “unprovided-for conflict.” Cipolla, 439 Pa. at 565, 267 A.2d at 855-56; Miller, 323 Pa. Super. at 470, 470 A.2d at 1355.

Instantly, a New York statute [**19] voids clauses immunizing recreational facilities from liability for negligence because they violate New York’s public policy.17 N.Y. Gen. Oblig. Law § 5-326 (McKinney 2014). Pennsylvania, however, recognizes the validity of such exculpatory clauses when they govern voluntary and hazardous recreational activities. See, e.g., Chepkevich, [*109] 607 Pa. at 36, 2 A.3d at 1195. Because relevant differences exist between New York and Pennsylvania jurisprudence, see Hammersmith, 480 F.3d at 230, there is an actual conflict that we must classify as a “true conflict,” “false conflict,” or “unprovided-for conflict.”

17 No party has suggested the statute applies outside of New York. Cf. Garcia, 421 F.3d at 220 (noting, “In our conflicts-of-law analysis[,] the first issue that we must address is whether New York’s . . . [l]aw with respect to the issue at hand has extraterritorial application, and, accordingly, whether that law by its terms can be applied to determine liability for the Pennsylvania accident underlying this appeal.”)

Akin to Rosen, which identified a true conflict because of Pennsylvania’s and Texas’s diametrically opposing views on malicious prosecution, Pennsylvania provides greater protection to recreational facilities, unlike New York, which favors protecting participants injured at such facilities. See Rosen, 399 Pa. Super. at 232-33, 582 A.2d at 30-32. To paraphrase [**20] our Supreme Court in Cipolla, the fact that McDonald is a resident of New York, which has adopted a plaintiff-protecting rule, and Whitewater is a resident of Pennsylvania, which has adopted a defendant-protecting rule, demonstrates a true conflict. See Cipolla, 439 Pa. at 565-66, 267 A.2d at 856.

We thus ascertain whether New York “or Pennsylvania has the greater interest in the application of its law to the question now before us.” See id. at 565, 267 A.2d at 855.

[HN6] In determining which state has the greater interest in the application of its law, one method is to see what contacts each state has with the accident, the contacts being relevant only if they relate to the “policies and interest underlying the particular issue before the court.” [Griffith, 416 Pa. at 21, 203 A.2d at 805]. When doing this it must be remembered that a mere counting of contacts is not what is involved. The weight of a particular state’s contacts must be measured on a qualitative rather than quantitative scale.

* * *

Also, it seems only fair to permit a defendant to rely on his home state law when he is acting within that state.

Consider the response that would be accorded a proposal that was the opposite of this principle if it were advanced against a person living in the state of injury on behalf of a person coming there [**21] from a state having a higher standard of care or of financial protection. The proposal thus advanced would require the community the visitor entered to step up its standard of behavior for his greater safety or lift its financial protection to the level to which he was accustomed. Such a proposal would be rejected as unfair. By entering the state or nation, the visitor has exposed himself to the risk of the territory and should not subject persons living there to a financial hazard that their law had not created.

Inhabitants of a state should not be put in jeopardy of liability exceeding that created by their state’s laws just because a visitor from a state offering higher protection decides to visit there.

Id. at 566-67, 267 A.2d at 856-57 (citations, punctuation, and footnote omitted); accord Myers v. Commercial Union Assurance Cos., 506 Pa. 492, 496, 485 A.2d 1113, 1115-16 (1984).18

18 We acknowledge that other Pennsylvania state and federal courts have construed the Griffith interest analysis differently. In Gillan v. Gillan, 236 Pa. Super. 147, 345 A.2d 742 (1975), and Knauer v. Knauer, 323 Pa. Super. 206, 470 A.2d 553 (1983), the Superior Court interpreted Griffith as adopting the Restatement (Second) of Conflicts of Law § 188, and applied the Restatement to the contracts at issue. Knauer, 323 Pa. Super. at 215, 470 A.2d at 558; Gillan, 236 Pa. Super. at 150, 345 A.2d at 744. Our Commonwealth Court in Ario v. Underwriting Members of Lloyd’s of London Syndicates 33, 205 & 506, 996 A.2d 588 (Pa. Commw. 2010), similarly opined in an insurance contract case that Griffith “adopted the [**22] approach of the Restatement of Conflict of Laws, Second to resolving choice of law questions.” Id. at 595 (citations omitted). “We of course recognize that a decision of the Commonwealth Court is not binding precedent upon this Court; however, it may be considered for its persuasive value.” Holland v. Marcy, 2002 PA Super 381, 817 A.2d 1082, 1083 n.1 (Pa. Super. 2002) (en banc) (citation and punctuation omitted). Section 188 identifies several factors in resolving choice of law:

(a) the place of contracting,

(b) the place of negotiation of the contract,

(c) the place of performance,

(d) the location of the subject matter of the contract, and

(e) the domicil, residence, nationality, place of incorporation and place of business of the parties.

Restatement (Second) of Contracts § 188 (1971). In contrast, the Third Circuit has consistently opined that Griffith combined “the ‘approaches of both the Restatement II (contacts establishing significant relationships) and interests analysis (qualitative appraisal of the relevant States’ policies with respect to the controversy).'” Hammersmith, 480 F.3d at 231 (punctuation omitted) (quoting Melville, 584 F.2d at 1311).

[*110] For example, the Walter Court ascertained whether Pennsylvania or New Jersey law should apply to an automobile insurance policy. Walter, 290 Pa. Super. at 136, 434 A.2d at 167. The Walter Court reviewed each state’s contacts with the contract:

In this contract case, [**23] the state having the most vital contacts with the policy of insurance involved was New Jersey. The policy was issued in New Jersey by the appellant in June, 1972, to Mr. Walter, a resident of New Jersey. It was issued for the twofold purpose of giving insurance protection to Mr. Walter and others as set forth in the policy, and to comply with the requirements set forth in the New Jersey Motor Vehicle Security Responsibility Statute . . . . No matter where [Mr. Walter’s agent] drove [Mr. Walter’s] car or gave consent to others to operate his vehicle, [Mr. Walter] had the right to expect that his policy conformed to New Jersey law and that the laws of New Jersey would apply in interpreting the policy. Pennsylvania had no contact with the transaction involving the insurance policy. It was by mere happenstance that the automobile was involved in an accident while located in Pennsylvania. As noted in Griffith v. United Air Lines, Inc., 416 Pa. 1, 203 A.2d 796: “(T)he site of the accident purely fortuitous.”

Id. at 137, 434 A.2d at 167-68. Because, inter alia, the appellant “issued an insurance policy to [Mr. Walter] to cover an automobile located in New Jersey,” and he obtained the policy to comply with New Jersey laws, the Walter Court held New Jersey law applied. Id. at 138, 434 A.2d at 168.

In McCabe [**24] , this Court likewise examined each state’s contacts to a Connecticut insurance contract:

In the instant case, [the insurer] argues that Connecticut law would apply since [the insured] lived in Connecticut, and the . . . policy of Insurance was executed there. It also contends that “underlying these contacts are Connecticut’s sovereign interests that the rights of its residents and those who do business in its state are governed by Connecticut law and that its insurance law, as applied to the insurance policy, will be given full faith and credit by a sister state.” Finally, [the insurer] alleges that Connecticut has an interest in minimizing insurance premiums for its residents. . . .

Pennsylvania had no contact with the transaction involving the insurance policy. It was by mere happenstance that [*111] the Connecticut automobile owned and operated by [the insured] was involved in an accident while located in Pennsylvania. . . . At this time, we are concerned with contract of insurance, and, as to the insurance policy, Connecticut had the most significant contacts.

McCabe, 356 Pa. Super. at 232, 514 A.2d at 586.

Instantly, similar to McCabe and Walter, whose contracts were executed outside of Pennsylvania, the exculpatory clause was executed [**25] in New York by McDonald, a New York resident. See id.; Walter, 290 Pa. Super. at 137, 434 A.2d at 167-68. New York certainly has a sovereign interest in protecting McDonald and may wish, as she averred, to recoup the costs of her medical treatment. See McCabe, 356 Pa. Super. at 232, 514 A.2d at 586. But, comparable to the insurance policy in Walter, the instant release was executed for the purpose of protecting Whitewater, a Pennsylvania business that “had the right to expect that [the release] conformed to [Pennsylvania] law and that the laws of [Pennsylvania] would apply in interpreting the [release].” See Walter, 290 Pa. Super. at 137, 434 A.2d at 167-68. “[I]t seems only fair to permit” Whitewater to rely on Pennsylvania law when it acted within Pennsylvania. See Cipolla, 439 Pa. at 567, 267 A.2d at 856. Whitewater should not be placed in jeopardy of liability exceeding that created by Pennsylvania law just because McDonald is a visitor from New York, a state offering higher protection. See id. Unlike McCabe and Walter, the site of the accident was not fortuitous, as the underlying accident occurred at Whitewater’s place of business in Pennsylvania on a preplanned outing for which McDonald signed a contract. Cf. McCabe, 356 Pa. Super. at 232, 514 A.2d at 586; Walter, 290 Pa. Super. at 137, 434 A.2d at 167-68. After carefully weighing the sovereign interests at stake, which include contacts establishing the significant relationships with each sovereign, we [**26] hold that Pennsylvania has the greater interest in the application of its law to this case. See Cipolla, 439 Pa. at 566, 267 A.2d at 856. Accordingly, we discern no basis for reversing the trial court’s order on this point. See Charlie, 100 A.3d at 250.

We next address Whitewater’s appeal, which raised the following issues:

Whether the trial court erred by denying summary judgment on the basis of [McDonald’s] alleged, and mere belief, that she was “economically compelled” to sign the release by her employer?

Whether [Whitewater] was entitled to summary judgment because the “Release of Liability” is a valid and enforceable exculpatory clause involving a recreational activity as a matter of well-established Pennsylvania law?

Whether [McDonald’s] claims against Whitewater are barred by the valid and enforceable Release, which [McDonald] signed knowingly and fully conscious of its meaning, and which contains clear and unambiguous language expressly releasing [Whitewater] from any liability for negligent conduct and shows [McDonald’s] express waiver of her right to bring any such negligence claims?

Whitewater’s Brief, 1221 MDA 2013, at 5 (reordered to facilitate resolution).

We set forth the following as background.

[McDonald] had testified in her deposition that on May 17, 2006, the Headmaster [**27] of the School of the Holy Child handed the Release form to [McDonald], while she was between classes and walking through the school hallway and told her to sign it, since she would be one of the chaperones for the students on the rafting trip.

[McDonald] alleges she [*112] signed the Release form without reading it.

Trial Ct. Op., 9/15/10, at 2. McDonald explained “that she did not read the Release because she had previously been on a whitewater trip in 2004.” McDonald’s Mem. of Law in Opp’n to Whitewater’s Second Mot. for Summ. J., 1/14/13, at 6 (citation omitted).

At her deposition, McDonald testified about the circumstances of her departure from the School of the Holy Child:

[Whitewater’s counsel]. Why did you leave School of the Holy Child to go [elsewhere]?

A. Well, due to the accident, I was only able to work parttime and after–

* * *

A. And when [teaching] contracts were renewed [in February 2007], I was given a contract, but I only received a one percent increase and–

* * *

A. . . . despite the fact that I had, you know, superior evaluation and the fact that I had been hurt on the job, I was insulted by the one percent increase.

Q. Were you told by one of your supervisors that the reason you [**28] got a one percent increase was because of your reduced work and the fact that you were injured on the job?

A. No.

Q. Did anyone tell you that?

A. No.

Q. That’s something that you surmised–

A. Yes.

Q. –based on the circumstances?

A. Yes, sir.

Q. Well, it carried [sic] $5,000. I can’t do the math very quickly, but.

A. Okay, all right, and this one percent raise turned out to be what?

A. Approximately $610.

Q. Okay, and your raises, while you were at School of the Holy Child, were they always consistent with approximately the $5,000 increase?

A. Three years previous to that, I’d gotten a $20,000 boost because I was seen as being a master teacher.

Q. Okay, all right. And this $600 . . . you didn’t expect another $20,000 bump, but you thought you might get something closer to the 5 grand that you had gotten the previous year.

A. Yes.

Q. And when you didn’t, you surmised it was because of your injury.

A. Yes, and I wasn’t going to be able to do all the extras that are pretty much inherent in working in an independent school.

Q. Extras, such as what?

A. Chaperoning trips to Europe, did that. Attending trustees, board of trustees and faculty dinners. Participating in faulty/student games. All the extras that [**29] are just read into our contract.

Q. Okay, and those are things that you did prior to the accident.

A. Yeah.

Q. And you did not do them after the accident.

A. No.

Q. Okay, so when you got your one percent raise, is that when you quit, you resigned?

A. No, I looked for a job first.

Ex. C to McDonald’s Mem. of Law in Opp’n to Whitewater’s Second Mot. for Summ. J., at 11-14.

We reproduce the following exchange from the deposition testimony of Ann Sullivan, [*113] the head of the School of the Holy Child, regarding its annual job evaluations:

[McDonald’s counsel]. And in terms of conducting evaluations of employees, and in particular teachers, was participation in afterschool extracurriculars or school trips, was that a factor looked at in terms of doing the evaluation?

A. I think it’s discussed during the evaluation. If you look at the evaluation forms, which are very idiosyncratic, there are four buckets. One is professional competence, one is commitment–

Q. I’m going to ask you–

A. Let me give you the background–one is commitment to the community, the third is leadership, and the fourth is congruence with the mission. There was a lot of discussion as to what percent each of those buckets was taken into [**30] consideration, and, frankly, it varies, and there was no answer to that. And I have to say it was all of those ways, but to varying degrees. Some people are great community people and not so great in the classroom, some people are great in the classroom and not so great in the community life. So, you know, it wasn’t meant to be punitive. It was to recognize different contributions.

Q. All right, I understand. But I just want to make sure I understand correctly. Even though there were different ways–you indicated there were different wings [sic] attached to different factors, you are saying, if I understand correctly–I’m not trying to put words in your mouth–that participation in school trips and extracurricular activities was at least a factor?

A. I’m going to go back to that that it is a broader discussion of community than going on school trips. Sometimes it is class trips, sometimes it is attending events. You know, it’s broader than that. It’s not a quid pro quo. You don’t get an extra $500 added to your salary because you are a chaperon [sic].

Q. Right, I understand there wasn’t a specific dollar amount that was attached for any particular factor indicated on the evaluation form, [**31] but it was at least a factor that was put into the overall mix in conducting evaluations of faculty, is that fair to say?

A. But it could be something quite different. It could be being the moderator of the yearbook or the Model UN. You are a making this assumption that going on extracurricular trips was part of your evaluation. It’s only one of many, many possible factors. I want you to know many people did not go on trips. There are a lot of young parents in the school and they are not able to go away overnight because–

[Sullivan’s counsel]: Parents or teachers?

A. Parents who are teachers. There are teachers who are young parents, have infants and toddlers and couldn’t do those trips, and certainly it was great if they would go to a concert and they would show up at field hockey games.

[McDonald’s counsel]. I understand. No one was compelled to go on any particular trip, but participation in things was at least a factor identified in her evaluation, is that correct?

A. I read [in McDonald’s employment file] that her supervisor thanked her for going on trips and going to athletic events.

Q. Hum-hum.

A. But, you know, I could say that there were wonderful people who declined to go on the [**32] trips and there were no financial repercussions.

Q. Okay. No one was ever terminated for not going on any extracurricular trips?

[*114] A. Never. And they were not–their salaries were not reduced for not going on trips.

Q. And there was never an employee who was penalized in his or her paycheck for not going on a school extracurricular or participating in afterschool projects.

A. Right.

Ex. I to McDonald’s Mem. of Law in Opp’n to Whitewater’s Second Mot. for Summ. J., at 38-41.

In support of their first issue, Whitewater contends that economic compulsion does not apply because McDonald’s employer–and not Whitewater–compelled McDonald to sign the release. Regardless, Whitewater argues that McDonald failed to present evidence establishing her employer compelled her to sign. Whitewater asserts that the undisputed record demonstrated McDonald would have suffered no repercussions by not participating in rafting.19 We hold Whitewater is entitled to relief.

19 Whitewater also contends McDonald waived her defense of duress by failing to raise it in her answer to Whitewater’s new matter invoking the release as a defense. Whitewater’s Brief, 1221 MDA 2013, at 28 (citing only Tri-State Roofing Co. of Uniontown v. Simon, 187 Pa. Super. 17, 19, 142 A.2d 333, 334 (1958) [hereinafter “Tri-State“]). The Tri-State Court did not hold that when the [**33] defendant invokes a contract as a defense in a new matter, the plaintiff is bound to raise all affirmative defenses in its reply to the new matter. Rather, the Court was merely summarizing the procedural posture in which the defendant filed a reply alleging duress in response to the plaintiff’s new matter. See id. at 19, 142 A.2d at 335. Whitewater did not articulate any other basis for waiver, and it is well-settled that [HN7] we may not reverse on an argument not raised. See generally Pa.R.A.P. 302. Accordingly, we decline to hold McDonald waived her defense.

It is well-settled that [HN8] the standard of review for an order resolving summary judgment is abuse of discretion or error of law. Charlie, 100 A.3d at 250. Our Supreme Court defined duress as follows:

[HN9] The formation of a valid contract requires the mutual assent of the contracting parties. Mutual assent to a contract does not exist, however, when one of the contracting parties elicits the assent of the other contracting party by means of duress. Duress has been defined as:

That degree of restraint or danger, either actually inflicted or threatened and impending, which is sufficient in severity or apprehension to overcome the mind of a person of ordinary firmness . . . . The quality of firmness is assumed [**34] to exist in every person competent to contract, unless it appears that by reason of old age or other sufficient cause he is weak or infirm . . . . Where persons deal with each other on equal terms and at arm’s length, there is a presumption that the person alleging duress possesses ordinary firmness . . . . Moreover, in the absence of threats of actual bodily harm there can be no duress where the contracting party is free to consult with counsel . . . .

Degenhardt v. Dillon Co., 543 Pa. 146, 153-54, 669 A.2d 946, 950 (1996) (citations and punctuation omitted).

[HN10] Economic duress, i.e., business or economic compulsion, is a form of duress. Tri-State, 187 Pa. Super. at 20, 142 A.2d at 335. The Tri-State Court defined economic duress as follows:

To constitute duress or business compulsion there must be more than a mere threat which might possibly result in injury at some future time, such as a threat of injury to credit in the indefinite future. It must be such a threat that, in conjunction with other circumstances [*115] and business necessity, the party so coerced fears a loss of business unless he does so enter into the contract as demanded.

Id. at 20-21, 142 A.2d at 335 (citation and punctuation omitted). The Court applied the above principles in ascertaining “whether [the] plaintiff’s threat to breach its contract with the defendant, if defendant [**35] did not sign the release . . . , constituted duress.” Id. at 18, 142 A.2d at 334.

In Litten v. Jonathan Logan, Inc., 220 Pa. Super. 274, 286 A.2d 913 (1971), this Court addressed whether a prior, favorable oral contract or a subsequent, unfavorable written contract controlled. Id. at 276-77, 286 A.2d at 914. “Plaintiffs contend they were compelled under the duress and coercion of the defendant to enter into the written contract because defendant had maneuvered plaintiffs into an untenable economic crisis from which they could extricate themselves only by signing the agreement prepared by defendant.” Id. at 277, 286 A.2d at 914-15. The jury agreed with the plaintiffs, and the defendant appealed, arguing, inter alia, the court failed to instruct the jury properly regarding duress. Id. at 277, 286 A.2d at 915. This Court affirmed, holding the defendant economically compelled the plaintiff to execute the subsequent written contract. Id. at 281-82, 286 A.2d at 917. In affirming the jury verdict, this Court approvingly quoted the trial court’s jury charge, which identified the elements of economic duress:

(1) there exists such pressure of circumstances which compels the injured party to involuntarily or against his will execute an agreement which results in economic loss, and (2) the injured party does not have an immediate legal remedy. The cases cited by defendant on this point . . . are inapplicable [**36] because in those cases the defendants did not bring about the state of financial distress in which plaintiffs found themselves at the time of signing. In the instant case, the final and potentially fatal blow was prepared by defendant, which by its actions created the situation which left plaintiffs with no alternative but to sign the contract as written.

* * *

Business compulsion is not establish[ed] merely by proof that consent was secured by the pressure of financial circumstances, but a threat of serious financial loss may be sufficient to constitute duress and to be ground for relief where an ordinary suit at law or equity might not be an adequate remedy. . . .

Id. at 282-83, 286 A.2d at 917 (citations, punctuation, and footnote omitted).

In Chepkevich, our Supreme Court adverted to economic duress in resolving whether an exculpatory agreement should be construed as a contract of adhesion:

[D]ownhill skiing–like auto racing–is a voluntary and hazardous activity . . . . Moreover, an exculpatory agreement conditioning use of a commercial facility for such activities has not been construed as a typical contract of adhesion. The signer is under no compulsion, economic or otherwise, to participate, much less to sign the exculpatory agreement, [**37] because it does not relate to essential services, but merely governs a voluntary recreational activity. See [Schillachi v. Flying Dutchman Motorcycle Club, 751 F. Supp. 1169 (E.D. Pa. 1990)] (exculpatory clause valid under Pennsylvania law where activity is purely recreational); Grbac v. Reading Fair Co., 521 F. Supp. 1351, 1355 (W.D. Pa. 1981), aff’d, 688 F.2d 215 (3d Cir. 1982) (exculpatory clause releasing stock car racing company from liability for death arising out of recreational race not invalid contract of adhesion [*116] under Pennsylvania law). The signer is a free agent who can simply walk away without signing the release and participating in the activity, and thus the contract signed under such circumstances is not unconscionable. . . .

It is also apparent that the Release here is valid under the other elements of the [standard governing validity of exculpatory provisions set forth in Topp Copy Prods., Inc. v. Singletary, 533 Pa. 468, 626 A.2d 98 (1993), and Emp’rs Liab. Assurance Corp. v. Greenville Bus. Men’s Ass’n, 423 Pa. 288, 224 A.2d 620 (1966) (referred to as the Topp Copy/Employers Liability standard)], aside from adhesion contract concerns. First, the Release cannot be said to contravene any policy of the law. Indeed, the clear policy of this Commonwealth, as embodied by the [Skier’s Responsibility] Act, is to encourage the sport and to place the risks of skiing squarely on the skier. 42 Pa.C.S. § 7102(c)(2). Furthermore, Pennsylvania courts have upheld similar releases respecting skiing and other inherently dangerous sporting [**38] activities. See, e.g., Wang v. Whitetail Mountain Resort, 2007 PA Super 283, 933 A.2d 110 (Pa. Super. 2007) (citing Superior Court panel’s decision in instant case, but upholding release as applied to snow tubing accident); [Nissley v. Candytown Motorcycle Club, 2006 PA Super 349, 913 A.2d 887 (Pa. Super. 2006)] (upholding exculpatory agreement that released defendant motorcycle club from “all liability”); [Zimmer v. Mitchell & Ness, 253 Pa. Super. 474, 385 A.2d 437 (1978)] (upholding exculpatory clause releasing ski rental shop from liability for injury suffered when skier’s bindings failed to release during fall). And, finally, the Release [the appellee] signed is a contract between the ski resort and [the appellee] relating to their private affairs, specifically [the appellee’s] voluntary use of the resort’s facilities.

Chepkevich, 607 Pa. at 28-30, 2 A.3d at 1190-91. Thus, an exculpatory clause is not typically analyzed within the framework of whether it is an contract of adhesion. Id. at 29, 2 A.3d at 1191 (“The signer is under no compulsion, economic or otherwise, to participate, much less to sign the exculpatory agreement, because it does not relate to essential services, but merely governs a voluntary recreational activity.”).

The case of Gillingham v. Consol Energy, Inc., 2012 PA Super 133, 51 A.3d 841 (Pa. Super. 2012), appeal denied, 621 Pa. 679, 75 A.3d 1282 (2013), is also instructive. Technical Solutions contractually employed Gillingham to work full-time on a software development project located at one of Consol Energy’s properties; Gillingham was considered an independent contractor of [**39] Consol. Id. at 853-54. A few weeks later, Consol asked Gillingham to sign “a stack of documents,” which included

a waiver of his right to sue Consol in the event he was injured due to its negligence. He felt that he had to sign the pages in question since he was contractually obligated to provide his services on the project through Technical Solutions. Mr. Gillingham believed that he was not in a position to refuse to sign the documents presented to him by Consol, and he stated, “If I would have not signed them, I would have to leave the site . . . because it’s like saying, No, I’m not going to honor your agreement and protect this technology.” He also would have violated his contract with Technical Solutions.

Id. at 854 (citation omitted). While exiting a Consol building via an exterior metal stairway, Gillingham was injured when the stairway collapsed. Id. at 847.

[*117] Gillingham successfully sued Consol. Id. On appeal, Consol contended the trial court should have granted its request for judgment notwithstanding the verdict because of the release Gillingham signed. Id. at 852. Gillingham countered that he felt compelled to sign the Consol release because (1) “he was contractually obligated to provide his services on the [**40] project through Technical Solutions,” and (2) he would have violated his employment contract with Technical Solutions, i.e., his employer. Id. at 854. The Gillingham Court held the record was sufficient to have a jury ascertain whether “Gillingham, who was under contract to provide services on the project, was compelled to execute the documents due to Consol’s superior bargaining position.” Id. The Court thus affirmed the jury’s verdict in favor of Gillingham. Id.

Instantly, we frame Whitewater’s question as whether one party to a contract can invoke duress when that duress was allegedly imposed by a non-party and not by the other party to the contract. More precisely, we examine whether McDonald can void the release by claiming the School of the Holy Child economically compelled her to sign the release with Whitewater. McDonald’s presumption is that economic compulsion, i.e., duress, by a non-party to a contract can be “transferred.”

Under these unique facts, we decline McDonald’s apparent invitation to expand a doctrine traditionally invoked between contracting parties. Our Supreme Court held that [HN11] mutual assent is a prerequisite to contract formation and that such mutual assent is absent [**41] “when one of the contracting parties elicits the assent of the other contracting party by means of duress.” See Degenhardt, 543 Pa. at 153, 669 A.2d at 950. McDonald and Whitewater are the contracting parties to the release; the School of the Holy Child is not a contracting party. It follows that the School of the Holy Child could not elicit the assent of McDonald by duress. See id.

Further, McDonald does not claim Whitewater economically compelled her to sign the release. Unlike the plaintiff in Litten, McDonald has not alleged that Whitewater–a contracting party–maneuvered her into economic distress and compelled her to sign the contract. Cf. Litten, 220 Pa. Super. at 281-82, 286 A.2d at 917; Tri-State, 187 Pa. Super. at 18, 142 A.2d at 334 (resolving allegation of duress between contracting parties). Whitewater, which provided recreational services similar to the ski resort in Chepkevich, did not compel McDonald to participate, “much less . . . sign the exculpatory agreement.” See Chepkevich, 607 Pa. at 29, 2 A.3d at 1191. In contrast to Gillingham, in which the plaintiff was contractually obligated to work for Consol, the other contracting party, McDonald was not contractually obligated to participate in recreational activities at Whitewater. Cf. Gillingham, 51 A.3d at 854. Nor did she allege that she would have violated her contract with the School of the Holy Child if she did not [**42] sign the Whitewater release. Cf. id. (stating plaintiff would have violated his employment contract with Technical Solutions, his direct employer, if he did not sign Consol release). In sum, given the predicate condition of a threat by one contracting party against another contracting party, economic duress by a non-party to a contract does not appear easily amenable to concepts of “transference” in this case.20

20 We do not foreclose the possibility, however, in other cases.

Assuming, however, duress by a non-contracting party could be invoked to negate mutual assent between contracting parties, and assuming that the possibility of not receiving a raise greater than 1% is [*118] a cognizable economic loss, McDonald’s suggestion that unless she signed the release, she could potentially not receive such a raise is, on this record, too conjectural. See Litten, 220 Pa. Super. at 282, 286 A.2d at 917; Tri-State, 187 Pa. Super. at 20-21, 142 A.2d at 335 (holding duress is “more than a mere threat” of possible economic injury in indefinite future). McDonald notes she received only a 1% raise in February of 2007. See Ex. C to McDonald’s Mem. of Law in Opp’n to Whitewater’s Second Mot. for Summ. J., at 13. But a minimal raise, after the fact, does not alone demonstrate that when McDonald signed the [**43] release in May 2006, she did so because she feared economic injury, i.e., not receiving a raise greater than 1%.

Having resolved that economic compulsion is not available to McDonald, we address Whitewater’s last two issues together: whether the release is valid and enforceable and thus bars McDonald’s claims. Whitewater asserts the release met all the elements of the Topp Copy/Employers Liability standard governing the validity of exculpatory clauses. Whitewater thus contends the trial court erred by denying summary judgment on liability. Whitewater, we hold, is entitled to relief.

In Chepkevich, our Supreme Court resolved “whether a skier may maintain a negligence action against a ski resort for injuries sustained while skiing or whether suit is barred by statute and/or a release signed by the skier.” Chepkevich, 607 Pa. at 3, 2 A.3d at 1175.

The Release, printed on a single page and titled “RELEASE FROM LIABILITY,” stated:

Skiing, Snowboarding, and Snowblading, including the use of lifts, is a dangerous sport with inherent and other risks which include but are not limited to variations in snow and terrain, ice and icy conditions, moguls, rocks, debris (above and below the surface), bare spots, lift towers, poles, snowmaking [**44] equipment (including pipes, hydrants, and component parts), fences and the absence of fences and other natural and manmade objects, visible or hidden, as well as collisions with equipment, obstacles or other skiers. . . . All the risks of skiing and boarding present the risk of serious or fatal injury. By accepting this Season Pass I agree to accept all these risks and agree not to sue Hidden Valley Resort or their employees if injured while using their facilities regardless of any negligence on their part.

Id. at 5, 2 A.3d at 1176.

The Chepkevich Court set forth the three elements of the Topp Copy/Employers Liability standard for determining the validity and enforceability of an exculpatory clause:

[HN12] It is generally accepted that an exculpatory clause is valid where three conditions are met. First, the clause must not contravene public policy. Secondly, the contract must be between persons relating entirely to their own private affairs and thirdly, each party must be a free bargaining agent to the agreement so that the contract is not one of adhesion. In Dilks v. Flohr Chevrolet, 411 Pa. 425, 192 A.2d 682 (1963), we noted that once an exculpatory clause is determined to be valid, it will, nevertheless, still be unenforceable unless the language of the parties is clear [**45] that a person is being relieved of liability for his own acts of negligence. In interpreting such clauses we listed as guiding standards that: 1) the contract language must be construed strictly, since exculpatory language is not favored by the law; 2) the contract must state the intention [*119] of the parties with the greatest particularity, beyond doubt by express stipulation, and no inference from words of general import can establish the intent of the parties; 3) the language of the contract must be construed, in cases of ambiguity, against the party seeking immunity from liability; and 4) the burden of establishing the immunity is upon the party invoking protection under the clause.

Chepkevich, 607 Pa. at 26, 2 A.3d at 1189 (citations omitted). Our Supreme Court held the release was valid and enforceable, and concluded the release barred the skier’s negligence lawsuit.21 Id. at 3, 31, 35, 2 A.3d at 1175, 1192, 1195.

21 The Chepkevich Court also held that the skier’s lawsuit was alternatively barred by the Skier’s Responsibility Act, 42 Pa.C.S. § 7102. See Chepkevich, 607 Pa. at 25, 2 A.3d at 1188.

In Tayar, the plaintiff was injured while snow tubing at a ski resort. Tayar, 616 Pa. at 390, 47 A.3d at 1193. She raised claims of negligence and reckless conduct against the ski resort and one of its employees. Id. at 391, 47 A.3d at 1194 (summarizing trial court’s decision). In response, the defendants [**46] asserted the plaintiff’s claims were barred because she signed the following release:

CAMELBACK SNOW TUBING

ACKNOWLEDGMENT OF RISKS AND AGREEMENT NOT TO SUE

THIS IS A CONTRACT–READ IT

I understand and acknowledge that snow tubing, including the use of lifts, is a dangerous, risk sport and that there are inherent and other risks associated with the sport and that all of these risks can cause serious and even fatal injuries. I understand that part of the thrill, excitement and risk of snow tubing is that the snow tubes all end up in a common, runout area and counter slope at various times and speeds and that it is my responsibility to try to avoid hitting another snowtuber and it is my responsibility to try to avoid being hit by another snowtuber, but that, notwithstanding these efforts by myself and other snowtubers, there is a risk of collisions.

* * *

IN CONSIDERATION OF THE ABOVE AND OF BEING ALLOWED TO PARTICIPATE IN THE SPORT OF SNOWTUBING, I AGREE THAT I WILL NOT SUE AND WILL RELEASE FROM ANY AND ALL LIABILITY CAMELBACK SKI CORPORATION IF I OR ANY MEMBER OF MY FAMILY IS INJURED WHILE USING ANY OF THE SNOWTUBING FACILITIES OR WHILE BEING PRESENT AT THE FACILITIES, EVEN IF I CONTEND THAT [**47] SUCH INJURIES ARE THE RESULT OF NEGLIGENCE OR ANY OTHER IMPROPER CONDUCT ON THE PART OF THE SNOWTUBING FACILITY.

Id. at 388-89, 47 A.3d at 1192-93. The trial court agreed with the defendants that the release absolved them of liability. Id. at 390-91, 47 A.3d at 1194. The plaintiff appealed to the Superior Court on, inter alia, whether the release exculpated defendants from reckless conduct. Id. at 391, 47 A.3d at 1194. The Superior Court, in an en banc decision, held that the release was limited to negligent conduct only. Id. (summarizing Superior Court’s holding).

The Tayar Court granted allowance of appeal to address, among other issues, whether the release barred the plaintiff’s claim for reckless conduct. Id. at 392, 47 A.3d at 1194. Our Supreme Court initially [*120] observed that “exculpatory clauses releasing a party from negligence generally are not against public policy.” Id. at 401, 47 A.3d at 1200. The Tayar Court held that the above release did not exculpate the defendants from reckless conduct because of the fundamental differences between negligence and recklessness. Id. at 403, 47 A.3d at 1201. Thus, our Supreme Court held that the plaintiff’s claim for reckless conduct could proceed. Id. at 406, 47 A.3d at 1203.

Regarding the first element needed for a valid exculpatory clause, Pennsylvania courts have affirmed exculpatory releases for “skiing and other inherently dangerous [**48] sporting activities,” such as snowtubing and motorcycle racing. See Chepkevich, 607 Pa. at 30, 2 A.3d at 1191 (citing Wang, supra, and Nissley, supra). Other activities include automobile racing,22 paintballing,23 and whitewater rafting.24 Thus, [HN13] Pennsylvania courts have held exculpatory clauses pertaining to inherently dangerous sporting activities do not “contravene any policy of the law.”25 Chepkevich, 607 Pa. at 29, 2 A.3d at 1191.

22 Seaton v. E. Windsor Speedway, Inc., 400 Pa. Super. 134, 140, 582 A.2d 1380, 1383 (1990) (affirming summary judgment in favor of defendant based on valid and enforceable exculpatory agreement signed by plaintiff).

23 Martinez v. Skirmish, U.S.A., Inc., Civ. No. 07-5003, 2009 U.S. Dist. LEXIS 51628, *34, 2009 WL 1676144, *12 (E.D. Pa. June 15, 2009) (holding release was valid and enforceable against plaintiff’s negligence claim).

24 Wroblewski v. Ohiopyle Trading Post, Civ. No. 12-0780, 2013 U.S. Dist. LEXIS 119206, at *30, 2013 WL 4504448, at *9 (W.D. Pa. Aug. 22, 2013) (concluding release signed by plaintiff exculpated whitewater rafting company for plaintiff’s negligence claim).

25 Courts have held invalid exculpatory clauses involving bailees, banks, and common carriers. Dilks, 411 Pa. at 434 n.9, 192 A.2d at 687 n.9 (citing cases).

With respect to the second element, our Supreme Court held [HN14] “[t]he validity of a contractual provision which exculpates a person from liability for his own acts of negligence is well settled if the contract is between persons relating entirely to their own private affairs.” Dilks, 411 Pa. at 433, 192 A.2d at 687. Lastly, the third element’s reference to “contracts of adhesion” may be problematic given different facts, as the Chepkevich Court acknowledged. Chepkevich, 607 Pa. at 28 n.18, 2 A.3d at 1190 n.18. The Chepkevich [**49] Court conceded that if the plaintiff “could not dicker over the terms of the form contract,” the release could have been a contract of adhesion. Id. But our Supreme Court emphasized, “such contracts executed in the course of voluntary participation in recreational activities have not been declared unenforceable on these grounds, presumably because we recognize an inherent policy-based distinction between ‘essential’ activities (such as signing a residential lease) and voluntary, nonessential ones (such as engaging in dangerous sports).” Id. Finally, [HN15] absent fraud, “failure to read [the contract] is an unavailing excuse or defense and cannot justify an avoidance, modification or nullification of the contract or any provision thereof.” Standard Venetian Blind Co. v. Am. Empire Ins. Co., 503 Pa. 300, 305, 469 A.2d 563, 566 (1983) (citations omitted and alteration in original).

Instantly, Whitewater’s exculpatory clause addressing negligence does not contravene Pennsylvania’s public policy. See Tayar, 616 Pa. at 401, 47 A.3d at 1200; Chepkevich, 607 Pa. at 29, 2 A.3d at 1191. Pennsylvania state and federal courts have affirmed substantively identical clauses in other dangerous sporting activities, including whitewater rafting. See Chepkevich, 607 Pa. at 30, 2 A.3d at 1191 (collecting [*121] cases); see also Wroblewski, 2013 U.S. Dist. LEXIS 119206, at *30, 2013 WL 4504448, at *9. Second, the release between McDonald and Whitewater related entirely to her participation in a hazardous [**50] recreational activity. See Dilks, 411 Pa. at 433, 192 A.2d at 687. We acknowledge that McDonald chaperoned this trip and that, in general, chaperoning field trips, among other duties, was an “extra” duty inherent to working at the School of the Holy Child. See Ex. C to McDonald’s Mem. of Law in Opp’n to Whitewater’s Second Mot. for Summ. J., at 14. But McDonald did not identify any materials issues of fact contradicting Sullivan’s deposition testimony that no teacher was compelled to chaperone any particular trip. See Ex. I to McDonald’s Mem. of Law in Opp’n to Whitewater’s Second Mot. for Summ. J., at 40-41. Indeed, McDonald did not dispute that an employee was not required to participate in extracurricular trips to demonstrate commitment to the community–one of four areas employees are evaluated in each year. See id. Lastly, identical to the plaintiff in Chepkevich, McDonald voluntarily engaged in a non-essential activity. See Chepkevich, 607 Pa. at 28 n.18, 2 A.3d at 1190 n.18. Accordingly, we hold Whitewater’s exculpatory clause is valid. See id. at 26, 2 A.3d at 1189.

As for the clause’s enforceability, we examine whether the clause “spells out the intention of the parties with particularity and shows the intent to release [Whitewater] from liability by express stipulation.” See id. at 30, 2 A.3d at 1191. The instant [**51] clause was titled “RELEASE OF LIABILITY — READ BEFORE SIGNING” “in capital letters in large font at the top,” identical to the Chepkevich release. See id. at 31, 2 A.3d at 1192. The language releasing Whitewater from liability was written in the same size font as the body of the release and required McDonald’s signature. See id.

Whether or not [McDonald] availed herself of the opportunity to read the Release she signed, we cannot agree that a full-page, detailed agreement, written in normal font and titled “RELEASE [OF] LIABILITY” constitutes an insufficient effort on the part of [Whitewater] to inform [McDonald] of the fact that, by signing [the release], she was giving up any right she might have to sue for damages arising from injuries caused even by negligence.

See id. Further, McDonald voluntarily engaged in whitewater rafting and Whitewater did not compel her to sign the release. See id. McDonald admittedly did not attempt to negotiate the terms of the release. See id. Accordingly, we conclude the release is enforceable. See id. Because the release is valid and enforceable, the trial court erred by denying Whitewater’s motion for summary judgment on liability and thus, Whitewater is due relief. See Charlie, 100 A.3d at 250. The [**52] order below is affirmed with respect to its holding that Pennsylvania law applies and reversed to the extent it held material issues of fact existed regarding Whitewater’s liability.

Order affirmed in part and reversed in part. Case remanded with instructions to grant judgment in favor of Whitewater and adverse to McDonald and for further proceedings, as deemed necessary. Jurisdiction relinquished.

Judgment Entered.

Date: 4/29/2015