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

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

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

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

Plaintiff: David Martin and Luisa Martin

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

Plaintiff Claims: Not stated specifically, obviously negligence

Defendant Defenses: Release

Holding: For the Plaintiff

Year: 2021

Summary

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

Facts

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

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

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

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

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

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

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

Here the judge just noticed the issue.

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

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

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

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

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

(1) Cross references that are confusing;

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

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

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

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

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

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

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

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

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

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

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

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

The court further divided the risks in its analysis.

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

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

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

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

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

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

So Now What?

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

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

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

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

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

What do you think? Leave a comment.

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

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

Civil Action No. 18-02511

United States District Court, D. New Jersey

December 31, 2021

NOT FOR PUBLICATION

OPINION

Stanley R. Chesler, United States District Judge

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

I. Background[2]

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

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

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

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

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

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

II. Discussion

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

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

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

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

A. The Evidentiary Record Properly Before the Court.

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

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

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

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

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

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

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

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

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

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

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

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

[MARTIN]: No, I did not.

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

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

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

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

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

A. From time to time apparently, yes.

Q. Well in this – –

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

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

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

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

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

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

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

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

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

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

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

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

(1) Cross references that are confusing;

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

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

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

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

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

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

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

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

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

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

C. The Release is Unenforceable Against Plaintiffs.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

III. Conclusion

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

———

Notes:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

———


Vladichak v. Mountain Creek Ski Resort, Inc. (N.J. Super. App. Div. 2022)

ANDREA VLADICHAK, Plaintiff-Respondent,
v.
MOUNTAIN CREEK SKI RESORT, INC., Defendant-Appellant,

and MICHAEL LAVIN, Defendant-Respondent.

No. A-1367-20

Superior Court of New Jersey, Appellate Division

April 13, 2022

This opinion shall not “constitute precedent or be binding upon any court .” Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

Argued April 4, 2022

On appeal from the Superior Court of New Jersey, Law Division, Sussex County, Docket No. L-0590-18.

Samuel J. McNulty argued the cause for appellant (Hueston McNulty, PC, attorneys; Samuel J. McNulty, of counsel and on the briefs; Edward J. Turro, on the briefs).

Matthew E. Kennedy argued the cause for respondent Michael Lavin (Leary Bride Mergner & Bongiovanni, PA, attorneys; Matthew E. Kennedy, of counsel and on the brief).

Before Judges Fasciale and Sumners.

PER CURIAM

Defendant Snow Creek, LLC d/b/a Mountain Creek Resort, Inc. (Mountain Creek) appeals from a November 9, 2020 order denying its motion for summary judgment and granting summary judgment to defendant Michael Lavin (Lavin) dismissing Mountain Creek’s cross-claims for defense costs and contractual indemnification. Judge David J. Weaver (motion judge) concluded in a thorough opinion that the contractual language was ambiguous and therefore Mountain Creek was not entitled to indemnification from Lavin or defense costs incurred to defend plaintiff’s allegations that Mountain Creek itself was negligent. We affirm.

On December 21, 2017, plaintiff sustained personal injuries while skiing at a ski area owned and operated by Mountain Creek in Vernon Township, New Jersey. Plaintiff was struck from behind by Lavin, another skier. Plaintiff filed a complaint alleging Mountain Creek and Lavin were negligent. Plaintiff’s complaint alleged Mountain Creek was independently negligent for failing to provide appropriate warnings to skiers, failing to appropriately designate the difficulty of ski trails, failing to provide skiers with appropriate information about trail conditions, failing to timely remove obvious manmade hazards, and/or otherwise failing to establish adequate procedures to provide a safe skiing environment. The complaint alleged Lavin was negligent for breaching his duty to others to ski in a reasonably safe manner by skiing in a reckless manner and/or intentionally colliding into plaintiff and causing her injuries.

Prior to the incident, Lavin signed an equipment rental agreement (Rental Agreement) and lift ticket agreement (Release Agreement) in which he agreed to defend and indemnify Mountain Creek from any claims related to his own conduct and use of the property’s equipment facilities. On August 7, 2019, Mountain Creek filed an answer and cross-claims seeking defense and indemnification from Lavin based on the executed Rental and Release Agreements. Mountain Creek previously tendered the defense to Lavin on July 16, 2019.

Plaintiff’s counsel served a report from plaintiff’s liability expert, who concluded that Lavin violated the New Jersey Ski Statute, N.J.S.A. 5:13-1 to -12, and the Skier’s Responsibility Code by failing to control his speed and course and by failing to yield to the skiers ahead of him. The expert opined that Lavin’s reckless conduct caused the accident. On March 27, 2020, Judge Stephan C. Hansbury entered an order granting Mountain Creek’s motion for summary judgment dismissing plaintiff’s claims that Mountain Creek was negligent. Lavin and plaintiff settled and filed a stipulation of dismissal with prejudice dated May 29, 2020.

After plaintiff’s settlement with Lavin, Mountain Creek filed its motion seeking reimbursement from Lavin for defending plaintiff’s allegations and indemnification from Lavin.[1] Lavin filed a cross-motion for summary judgment on September 1. That led to the order under review.

The judge concluded that, as a matter of law, the indemnification provisions were ambiguous and thus unenforceable to compel indemnification in favor of Mountain Creek for claims of its own negligence. The motion judge denied Lavin’s cross-motion for summary judgment in part and granted it in part. The motion judge requested the parties submit the detail and extent of defense costs incurred by Mountain Creek for costs incurred for which liability was only vicarious.

Mountain Creek’s attorneys stipulated that there were no fees or costs incurred from defending vicarious liability claims. On December 14, 2020, Judge Robert J. Brennan entered a consent order resolving all remaining issues as to all parties.

Mountain Creek raises the following arguments on appeal:

POINT I

STANDARD OF REVIEW-DE NOVO[.]

POINT II

THE [MOTION JUDGE] CORRECTLY RULED THAT THE TWO AGREEMENTS WERE NOT CONTRACTS OF ADHESION NOR WERE THEY CONTRARY TO PUBLIC POLICY.

POINT III

THE [MOTION JUDGE] ERRED IN FINDING THAT THE LANGUAGE IN THE AGREEMENTS SIGNED BY . . . LAVIN IS AMBIGUOUS AND INSUFFICIENT TO COMPEL . . . LAVIN TO INDEMNIFY AND DEFEND MOUNTAIN CREEK FOR CLAIMS OF ITS OWN NEGLIGENCE.

A. Special Status Of A Ski Operator.

B. The Two Agreements Were Unambiguous And Should Be Enforced.[2]

Mountain Creek raises the following points in reply, which we have renumbered:

POINT IV

. . . LAVIN’S REQUEST THAT THE APPELLATE DIVISION REVERSE THE [MOTION JUDGE]’S JUDGMENT THAT THE CONTRACTS WERE NOT UNCONSCIONABLE SHOULD BE REJECTED AS NO CROSS-APPEAL WAS FILED.

POINT V

THE AGREEMENTS IN QUESTION ARE ENFORCEABLE AND NOT UNCONSCIONABLE CONTRACTS OF ADHESION.

POINT VI

THE INDEMNIFICATION LANGUAGE IS SUFFICIENT AND EXPRESSLY PROVIDES FOR INDEMNIFICATION FOR CLAIMS ASSERTING MOUNTAIN CREEK’S OWN NEGLIGENCE.

We review the motion judge’s grant of a motion for summary judgment de novo. Branch v. Cream-O-Land Dairy, 244 N.J. 567, 582 (2021). We apply the same standard as the motion judge and consider “whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party.” Brill v. Guardian Life
Ins. Co. of Am., 142 N.J. 520, 540 (1995).

I.

Mountain Creek contends the motion judge erred in ruling the indemnification provisions in the Release and Rental Agreements were ambiguous and unenforceable to compel Lavin to indemnify Mountain Creek for Mountain Creek’s own negligence. Mountain Creek also contends that it should be permitted to obtain indemnification from Lavin based on its special status as a ski area operator under the Ski Statute.

The judge’s role “in construing a contractual indemnity provision is the same as in construing any other part of a contract-it is to determine the intent of the parties.” Kieffer v. Best Buy, 205 N.J. 213, 223 (2011). Generally, courts give contractual provisions “their plain and ordinary meaning.” Ibid. (quoting M.J. Paquet, Inc. v. N.J. Dep’t of Transp., 171 N.J. 378, 396 (2002)). “However, indemnity provisions differ from provisions in a typical contract in one important aspect. If the meaning of an indemnity provision is ambiguous, the provision is ‘strictly construed against the indemnitee.'” Ibid. (quoting Mantilla v. NC Mall Assocs., 167 N.J. 262, 272 (2001)).

We have characterized this approach as a “bright line” rule requiring “explicit language” when “indemnification includes the negligence of the indemnitee.” Azurak v. Corp. Prop. Invs., 347 N.J.Super. 516, 523 (App. Div. 2002). Azurak involved a contract between a janitorial company (PBS) and a shopping mall owner (the Mall) that contained the following provision:

Contractor [PBS] shall indemnify, defend and hold harmless each Indemnitee [the Mall] from and against any claim (including any claim brought by employees of Contractor), liability, damage or expense (including attorneys’ fees) that such Indemnitee may incur relating to, arising out of or existing by reason of (i) Contractor’s performance of this Agreement or the conditions created thereby (including the use, misuse or failure of any equipment used by Contractor or its subcontractors, servants or employees) or (ii) Contractor’s breach of this Agreement or the inadequate or improper performance of this Agreement by Contractor or its subcontractors, servants or employees.

[Azurak v. Corp. Prop. Invs., 175 N.J. 110, 111 (2003) (alterations in original).]

The plaintiff sued the Mall and PBS for injuries she sustained when she slipped on the Mall’s floor. Ibid. The trial judge granted the Mall’s summary judgment motion on the issue of indemnification based on the contract provision. Ibid. At trial, the jury determined “that plaintiff was 30% negligent; the Mall, 30%; and PBS, 40%.” Ibid. This court disagreed with the trial judge, finding that the indemnification provision did not encompass the Mall’s negligence because the provision’s language was neither explicit nor unequivocal as to claims of the Mall’s own negligence. Id. at 111-12. Our Court affirmed and held that “in order to allay even the slightest doubt on the issue of what is required to bring a negligent indemnitee within an indemnification agreement, we reiterate that the agreement must specifically reference the negligence or fault of the indemnitee.” Id. at 112-13.

Mountain Creek’s Release Agreement contained a provision that states:

INDEMNIFICATION. To the fullest extent permitted by law, I agree to DEFEND, INDEMNIFY AND HOLD HARMLESS Mountain Creek from any and all claims, suits, costs and expenses including attorneys’ fees asserted against Mountain Creek by me or third parties arising or allegedly arising out of or resulting from my conduct while utilizing Mountain Creek’s facilities WHETHER OR NOT MOUNTAIN CREEK’S NEGLIGENCE contributed thereto in whole or in part.

One provision of the Rental Agreement states:

To the fullest extent permitted by law, I also agree to DEFEND, INDEMNIFY AND HOLD HARMLESS Mountain Creek from any and all claims, suits, costs and expenses including attorneys’ fees for personal injury, death or property damage against it by me or third parties arising or allegedly arising out of or resulting from my conduct while utilizing Mountain Creek’s facilities or the use of this equipment whether or not MOUNTAIN CREEK’S NEGLIGENCE contributed thereto in whole or in part.

We agree with the motion judge that the indemnity provisions in the agreements are ambiguous as to claims of Mountain Creek’s independent negligence. Although the provisions reference Mountain Creek’s negligence in bold and capitalized letters, the language “arising out of or resulting from my conduct . . . whether or not MOUNTAIN CREEK’S NEGLIGENCE contributed thereto in whole or in part” is insufficient to meet the Azurak standard. One could reasonably interpret the provisions to require indemnification and defense of Mountain Creek for any claims of negligence against it caused by Lavin’s conduct even when Mountain Creek is partially at fault or to require Lavin to indemnify and defend Mountain Creek for separate claims of its own negligence. See Nester v. O’Donnell, 301 N.J.Super. 198, 210 (App. Div. 1997) (noting that a contract is ambiguous if it is “susceptible to at least two reasonable alternative interpretations” (quoting Kaufman v. Provident Life & Cas. Ins. Co., 828 F.Supp. 275, 283 (D.N.J. 1992), aff’d, 993 F.2d 877 (3d Cir. 1993))).

An indemnitor may expect to indemnify and defend an indemnitee for claims caused by its negligent conduct when the indemnitee may also be at fault but may not expect to be solely responsible to indemnify and defend the indemnitee when the indemnitee has committed separate acts of negligence. That is the case here, as plaintiff’s complaint alleged Mountain Creek was separately negligent for failing to provide adequate instructions to skiers and a safe ski environment. A better-and likely enforceable-provision would explicitly state that the indemnitor indemnifies Mountain Creek for claims arising out of indemnitor’s conduct and for claims of Mountain Creek’s independent negligence.

The provisions at issue do not meet the bright line rule requiring “unequivocal terms” that the duty to indemnify extends to the indemnitee’s own negligence. Thus, the provisions are ambiguous and must be strictly construed against Mountain Creek. The same reasoning and standards apply with equal force to Mountain Creek’s defense costs. The provisions’ ambiguity precludes their enforcement against Lavin for recovery of the costs incurred by Mountain Creek for defending its own negligence claims.

We also conclude Mountain Creek’s argument that the Ski Statute supports enforcement of the indemnification provisions is without merit. While the Ski Act may emphasize the inherent risk that skiers assume when skiing, the Act provides separate duties to the ski operator, which include establishing and posting a system for identifying slopes and their difficulty, ensuring the availability of information to skiers, and removing hazards as soon as practicable. N.J.S.A. 5:13-3(a). The allegations in plaintiff’s complaint, which include failing to provide adequate signage and failing to instruct skiers properly, do not fall under the risks that “are essentially impractical or impossible for the ski area operator to eliminate” defined in the statute. N.J.S.A. 5:13-1(b). In fact, plaintiff’s complaint addressed the responsibilities of a ski area operator as prescribed by the Act. Requiring indemnification in favor of a ski resort for claims of its own independent negligence does not further the Ski Act’s purpose of allocating the inherent risk of skiing between the skier and ski resort. Moreover, the public policy of the Ski Act has no bearing on our interpretation of the indemnity provisions and our conclusion that the provisions are ambiguous.

II.

Lavin argues, on an alternative basis, that the Rental and Release Agreements are unconscionable contracts of adhesion. Lavin was not required to file a Notice of Cross-Appeal to preserve this argument for appeal because “appeals are taken from judgments, not opinions, and, without having filed a cross-appeal, a respondent can argue any point on the appeal to sustain the trial [judge’s] judgment.” Chimes v. Oritani Motor Hotel, Inc., 195 N.J.Super. 435, 443 (App. Div. 1984). Even if Lavin were required to file a cross-appeal, we will address the merits of his argument.

As a threshold issue, we determine that the Release and Rental Agreements were contracts of adhesion. If a contract is characterized as a contract of adhesion, “nonenforcement of its terms may be justified on other than such traditional grounds as fraud, duress, mistake, or illegality.” Rudbart v. N. Jersey Dist. Water Supply Comm’n, 127 N.J. 344, 353 (1992). An adhesion contract is one that “is presented on a take-it-or-leave-it basis, commonly in a standardized printed form, without opportunity for the ‘adhering’ party to negotiate except perhaps on a few particulars.” Vitale v. Schering-Plough Corp., 231 N.J. 234, 246 (2017) (quoting Rudbart, 127 N.J. at 355). “Although a contract of adhesion is not per se unenforceable, a [judge] may decline to enforce it if it is found to be unconscionable.” Ibid.

We agree with the motion judge that “the Agreements at issue evidence characteristics of contracts of adhesion.” The Release and Rental Agreements were standardized form contracts that fit our Court’s definition as “take-it-or-leave-it” adhesion contracts. See ibid. All potential skiers at Mountain Creek’s resort are obligated to sign the Release Agreement, and there is little to no negotiating done before the agreements’ execution. However, an agreement found to be an adhesion contract may nevertheless be enforced if it is not unconscionable. See ibid.

When determining whether an adhesion contract is unconscionable, we evaluate four factors that “focus on procedural and substantive aspects of the contract to determine whether the contract is so oppressive, or inconsistent with the vindication of public policy, that it would be unconscionable to permit its enforcement.” Id. at 247 (internal quotation marks omitted) (quoting Rodriguez v. Raymours Furniture Co., Inc., 225 N.J. 343, 367 (2016)). Those factors include “the subject matter of the contract, the parties’ relative bargaining positions, the degree of economic compulsion motivating the ‘adhering’ party, and the public interests affected by the contract.” Rudbart, 127 N.J. at 356. The first three factors speak to procedural unconscionability, and the last factor speaks to substantive unconscionability. See Rodriguez, 225 N.J. at 367. We consider these factors using a “sliding scale analysis.” Stelluti v. Casapenn Enters., LLC, 203 N.J. 286, 301 (2010).

The motion judge correctly relied on Stelluti in determining the agreements are not procedurally unconscionable. In Stelluti, the plaintiff was injured in a spinning class at a private fitness center and argued that the pre-injury waiver of liability she signed was unenforceable on unconscionability grounds. Id. at 291, 300. The Court found that although the pre-printed form was an adhesion contract, it was not procedurally unconscionable. Id. at 301-02. The Court reasoned the plaintiff was not in a position of unequal bargaining power, despite being a layperson and not being fully informed of the legal effect of an adhesion contract, when she had the ability to take “her business to another fitness club,” to find a form of exercise different than joining a private gym, or to contemplate the agreement for some time before joining the gym and using its equipment. Id. at 302.

Under the Court’s reasoning in Stelluti and applying the four-factor test, the Release and Rental Agreements are not procedurally unconscionable. At the time of the incident, Lavin was twenty years old and a layperson without specialized knowledge of the law. He maintains he did not read the agreements before signing them despite having the opportunity to do so. Lavin also stated that he did not have the opportunity to negotiate the terms of the agreement. However, Lavin was engaging in a recreational activity like the adhering party in Stelluti, and he was under no economic duress or obligation to consent to the agreements. Lavin could have chosen to take his business to another ski resort, rented skis from a different facility, or could have simply read the agreements or contemplated them before signing.

As for the remaining factor-the impact on public interest-Mountain Creek points to the “strong public policy of protecting ski operators and allocating the risks and costs of inherently dangerous recreational activities” under the Ski Statute. The Act’s purpose is to make explicit a policy of this State which clearly defines the responsibility of ski area operators and skiers, recognizing that the sport of skiing and other ski area activities involve risks which must be borne by those who engage in such activities and which are essentially impractical or impossible for the ski area operator to eliminate. It is, therefore, the purpose of this act to state those risks which the skier voluntarily assumes for which there can be no recovery.

[N.J.S.A. 5:13-1(b).]

We agree that the Agreements are not substantively unconscionable. The agreements do not contain terms that are so “harsh” or “one-sided” to render them unconscionable and unenforceable. See Muhammad v. Cnty. Bank of
Rehoboth Beach, Del., 189 N.J. 1, 15 (2006). Construing the indemnity provision against Mountain Creek due to its ambiguity, the provision requires that Lavin indemnify and defend Mountain Creek for claims arising out of Lavin’s conduct while using Mountain Creek’s equipment and facilities, even when Mountain Creek is partially at fault. This indemnification scheme is consistent with the Ski Act’s purpose to promote “the allocation of the risks and costs of skiing” as “an important matter of public policy.” N.J.S.A. 5:13-1(a). Moreover, in Stelluti, the Court considered that “some activities involve a risk of injury and thus require risk sharing between the participants and operators” and that our Legislature has enacted statutes to address the allocation of risk in those circumstances. 203 N.J. at 308. It would not be against public policy to require indemnification of Mountain Creek by Lavin for claims of vicarious liability due to Lavin’s reckless conduct; however, Mountain Creek stipulated that it did not incur any costs in defending claims of vicarious liability.

Affirmed.

———

Notes:

[1] Mountain Creek did not contribute towards plaintiff’s settlement with Lavin.

[2] To comport with our style conventions, we altered the capitalization of Mountain Creek’s Points A and B but omitted the alterations for readability.

———


I can’t figure out why this Equine Liability case is winning, except it is in Utah.

Utah historical seems to write big checks to injured kids, seems to be the case here.

Nasserziayee v. Ruggles (D. Utah 2022)

State: Utah, United States District Court, D. Utah

Plaintiff: Farooq Nasserziayee and Lenore Supnet, and daughter, M.N., a minor

Defendant: Jack Ruggles and Jane Doe Ruggles, Zion Canyon Trail Rides at Jacob’s Ranch, LLC, Joshua Ruggles; Clay Doe

Plaintiff Claims: negligence, gross negligence, infliction of emotional distress, and negligent infliction of emotional distress

Defendant Defenses: Assumption of the Risk, Express Assumption of the Risk, Release

Holding: Partial win for the defendants but going to trial

Year: 2022

Summary

The plaintiff’s mother, father and daughter went on a trail ride. The daughter fell off the horse and was injured. Now she wants money.

Facts

The facts of the case are interspaced in the opinion, so they are pulled here in an attempt to explain what happened that gave rise to this litigation.

On March 4, 2020, Nasserziayee and Supnet filed a complaint alleging their minor daughter, M.N., was badly injured in a March 21, 2016, fall off of a horse at Jacob’s Ranch.

First, Plaintiffs submitted evidence that helmets were not offered. Second, Plaintiffs submitted evidence that Clay Doe encouraged the horses to go faster at one point, even though the horses carried inexperienced riders.

The plaintiff’s signed up to go for a horseback riding trip. The father signed a release. It is disputed whether the plaintiffs were offered a helmet prior to the ride. It is disputed that the trip leader encouraged everyone to hurry up, about the same time, the daughter fell off her horse.

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

The first issue the court reviewed was whether the defendant could be grossly negligent if the defendant did not offer the plaintiff’s helmets to wear before the ride.

“In Utah, gross negligence is ‘the failure to observe even slight care; it is carelessness or recklessness to a degree that shows utter indifference to the consequences that may result.'”[36]Under Utah law, resolution of a gross negligence claim is typically within the province of the factfinder. Summary judgment is only appropriate on a gross negligence claim when “reasonable minds could reach but one conclusion” as to whether a defendant observed even slight care.

Both parties submitted affidavits from themselves and people on the ride. The plaintiff’s affidavits stated the defendant did not offer the riders any helmets. The defendants’ affidavits stated that helmets were offered. As such the court found there was a factual issue that could not be resolved. However, without any analysis, the court stated that failure to offer a helmet could be found to be gross negligence.

What was very interesting was how the court looked at the statement in the release that stated the plaintiffs were offered a helmet.

Defendants also suggest that because Plaintiffs signed the Release, which contains a clause agreeing that the signer had been offered a helmet, no factfinder could conclude that Plaintiffs were not offered helmets. While that clause may be evidence that Plaintiffs were offered helmets and may be relevant in evaluating an assumption of risk defense, it is not dispositive of helmets being actually provided. Resolution of such a question is within the province of the factfinder.

Rarely, if ever have a contract provision, which makes a statement been ruled as not controlling. This does not bold well for releases in Utah to some extent.

The next issue was assumption of the risk both as an express assumption of the risk agreement signed by the father, the risk assumed by statute with the Utah’s Equine and Livestock Activities Act, and the risk of falling you assume when you get on a horse. However, whether a plaintiff assumed the risk is usually a decision for the fact finder or jury so although a great defense is rarely wins at the motion for summary judgment level.

Utah recognizes three types of assumption of the risk.

There are three types of assumption of risk in Utah: primary express, primary implied, and secondary.

• Primary express assumption of risk “involves a contractual provision in which a party expressly contracts not to sue for injury or loss which may thereafter be occasioned by the acts of another.”

• Primary implied assumption of risk occurs in inherently risky activities, where the defendant as a matter of law owes no duty of care to a plaintiff for certain risks because no amount of care can negate those risks.

• Secondary assumption of risk occurs when a person voluntarily but “unreasonabl[y] encounter[s] . . . a known and appreciated risk.” Secondary assumption of risk is treated akin to contributory negligence, and is “no longer recognized in Utah as a total bar to recovery.”

The court then proceeded to eliminate assumption of the risk as a defense at this level of the trial and to a certain extent, back at the trial level.

Primary express assumption of risk does not bar Plaintiffs’ claims. Primary express assumption of risk allows a party to contract with another that they will not sue in case of injury or loss. This type of assumption of risk is more closely related to contract law, and typically takes the form of preinjury liability releases, such as the Release in this case

The Release shows that Plaintiffs only agreed to assume those “risks, conditions, & dangers [which] are inherent” to horseback riding. As discussed below, the negligence Defendants are accused of is not the type “inherent” to horseback riding. Accordingly, primary express assumption of risk does not bar Plaintiffs’ claims on this record.

I always though falling off a horse was an inherent risk of horseback riding. However, this court does not see the case in that way. Assumption of the risk as expressed in the release is not a bar to the claims because “how” the child fell off the horse is the issue according to the court.

The court even stretched further to deny assumption of the risk as defined by primary implied assumption of the risk.

Primary implied assumption of risk does not bar Plaintiffs’ claims. Primary implied assumption of risk only applies to “inherently risky” activities. In order for primary implied assumption of risk to bar a plaintiff’s claims, the injury must have resulted from a risk “inherent” to an activity, and be one that a defendant cannot eliminate through imposition of reasonable care. Utah’s Equine and Livestock Activities Act (the “Act”) has essentially codified this doctrine as it relates to horse-related injuries. Both the Act and the doctrine of primary implied assumption of risk distinguish between injuries resulting from the inherent risks of the relevant activity and injuries resulting from negligent behavior. Inherent risks of horseback riding may include a horse’s propensity to bolt when startled or other unpredictable behavior. It may also refer to a rider’s failure to control the animal or not acting within one’s ability. If an injury “was caused by an unnecessary hazard that could have been eliminated by the use of ordinary care, such a hazard is not . . . an inherent risk” of an inherently risky activity

The court found that secondary assumption of the risk is not a bar to the claims also.

Secondary assumption of risk does not bar Plaintiffs’ claims. Secondary assumption of risk, “the unreasonable encountering of a known and appreciated risk, ” is more properly viewed as an “aspect of contributory negligence.” Contributory negligence is not a complete bar to recovery, but rather involves the apportionment of fault. Once the combined negligence of plaintiff and defendant has been established, evaluation of a comparative or contributory negligence defense is within the province of the factfinder.

The court did rule in favor of the defendant on the intentional infliction of emotional distress claim finding that under Utah’s law the actions of the defendant in causing this injury must almost be intentional.

Rather, Utah courts have described the type of conduct required to sustain a claim for IIED as “extraordinary vile conduct, conduct that is atrocious, and utterly intolerable in a civilized society.” The Tenth Circuit has similarly described Utah law as setting “high standards” to establish a claim for IIED.

So Now What?

This case has several issues that raise concerns about the law in Utah now an in the future.

The first is discounting the requirements or agreements in a contract, in this case the release. When you sign a contract, you agree to the terms of the contract. The release stated the plaintiff was offered a helmet. The court did not care.

The next issue is failing to offer a helmet to someone is possibly gross negligence. This is not that far of a stretch, but the first time I have seen it in any outdoor recreation case. However, failure to provide safety equipment that usually accompanies any recreational activity is an easy way to lose a lawsuit.

But these two issues create an additional problem. How do you prove you offered a helmet or other safety equipment to someone. Normally, you would put it in the release. Here that does not work. Videotape the helmet area? Have a separate document saying you agree not to wear a helmet?

Finally, you can see where a case is headed or what type of attitude a court has about a case when all three forms of assumption of the risk recognized under Utah’s law are found not to apply in this case. The court was right that the language of the Utah Equine and Livestock Activities Act only covers the inherent risks of horseback riding and therefore, provides no real protection.

I’ve said it for years, the equine protection laws enacted in all 50 states are 100% effective. No horse has been sued since those laws have been in place. However, their effectiveness in stopping claims again, the horse owners or stables are worthless. In fact, lawsuits and judgements over injuries caused by horses have increased since the passage of the equine liability laws.

When you are lifted up or climb up onto an animal whose back is 5′ to 6′ above the ground, if you fall off that animal don’t you think you can suffer an injury? This court does not think so.

What do you think? Leave a comment.

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Nasserziayee v. Ruggles (D. Utah 2022)

Nasserziayee v. Ruggles (D. Utah 2022)

FAROOQ NASSERZIAYEE AND LENORE SUPNET, husband and wife, on their own behalf, and on behalf of their daughter, M.N., a minor, Plaintiffs,
v.
JACK RUGGLES and JANE DOE RUGGLES, husband and wife; ZION CANYON TRAIL RIDES AT JACOB’S RANCH, LLC, a Utah limited liability company; JOSHUA RUGGLES; CLAY DOE, Defendants.

No. 4:19-cv-00022-DN-PK

United States District Court, D. Utah

January 7, 2022

Paul Kohler, Magistrate Judge

MEMORANDUM DECISION AND ORDER

DENYING MOTION TO STRIKE AND

GRANTING IN PART AND DENYING IN PART MOTION FOR SUMMARY JUDGMENT

David Nuffer United States District Judge

This case arises out of an alleged accident at Zion Canyon Trail Rides at Jacob’s Ranch (“Jacob’s Ranch”), a recreational horseback riding facility. Plaintiffs Farooq Nasserziayee (“Nasserziayee”) and Lenore Supnet (“Supnet”) filed a complaint on behalf of themselves and their daughter, M.N., alleging that M.N. was injured during a horse-riding accident due to the actions of Defendants.

Defendants Zion Canyon Trail Rides at Jacob’s Ranch, Jack Ruggles, and Jane Doe Ruggles (collectively “Moving Defendants”) moved for summary judgment. They allege that summary judgment is appropriate because (1); no reasonable factfinder could find gross negligence; (2) Plaintiffs assumed the risk of injury; (3) no reasonable fact finder could find negligent infliction of emotional distress; and (4) no reasonable fact finder could find intentional infliction of emotional distress. For the following reasons, the Motion is GRANTED IN PART and DENIED IN PART.

Contents

Background ……………………………………………………………………………………………………………………. 2

A Prior Ruling Eliminated Some Claims …………………………………………………………………. 3

This Motion for Summary Judgment ………………………………………………………………………. 3

Undisputed Material Facts ……………………………………………………………………………………………….. 4

Discussion ……………………………………………………………………………………………………………………… 6

Defendant’s Motion to Strike is Denied ………………………………………………………………….. 6

Defendants’ Motion for Summary Judgment Will be Granted in Part and Denied in Part 8 A Reasonable Factfinder Could Conclude Defendants Were Grossly Negligent … 9

Assumption of Risk Does Not Bar Plaintiffs’ Negligence Claims ………………….. 13

The Prior Ruling Granted Summary Judgment on the Negligent Infliction of Emotional

Distress Claim …………………………………………………………………………………………. 16

Summary Judgment Will be Granted on the Intentional Infliction of Emotional Distress

Claim ……………………………………………………………………………………………………… 17

Conclusion and Order ……………………………………………………………………………………………………. 18

BACKGROUND

On March 4, 2020, Nasserziayee and Supnet filed a complaint alleging their minor daughter, M.N., was badly injured in a March 21, 2016, fall off of a horse at Jacob’s Ranch.[1] The complaint asserted claims for negligence, gross negligence, infliction of emotional distress, and negligent infliction of emotional distress against Jacob’s Ranch, Jack Ruggles, and Jane Doe Ruggles.[2] In April 2020, Plaintiffs filed an amended complaint, which added identical claims against Joshua Ruggles and Clay Doe, and alleged, “[b]ased on the statements of Defendant Jack (“Pappy”) Ruggles and Defendant Jacobs Ranch, ” that Joshua Ruggles and Clay Doe were independent contractors.[3]

A Prior Ruling Eliminated Some Claims

In October 2020, Defendants filed a Motion to Dismiss and for Summary Judgment[4], which was granted in part and denied in part (“Prior Ruling”).[5] The Prior Ruling granted summary judgment for Defendants on the claims for ordinary negligence and negligent infliction of emotional distress, based on the Release Plaintiffs signed prior to the horseback ride.[6]However, the Prior Ruling denied summary judgment on the claims for gross negligence and intentional infliction of emotional distress because those claims were not barred by the Release.[7]The Prior Ruling also found there was sufficient evidence to support a claim for gross negligence, because there were disputed facts not amendable to resolution based on the record at the time. Specifically, the Prior Ruling noted that Plaintiffs had submitted evidence that helmets were not made available to the group, and the horses were at one point encouraged to go faster, even though they were carrying inexperienced riders. The Prior Ruling concluded that this evidence, if believed by a jury, could support a finding of gross negligence against Jack Ruggles, Jane Doe Ruggles, and Jacob’s Ranch.[8]

This Motion for Summary Judgment

On September 16, 2021, Moving Defendants Jack Ruggles, Jane Doe Ruggles, and Zion Canyon Trail Rides at Jacob’s Ranch, LLC filed this motion for summary judgment on all remaining issues (“Motion”), which is resolved in this ruling.[9] Plaintiffs filed a response on October 14 (“Response”), [10] and a supplemental response on October 28, 2021 (“Supplemental Response”).[11] Moving Defendants filed a reply on October 28, 2021(“Reply’).[12]

On November 3, 2021, Moving Defendants moved to strike Plaintiffs’ Supplemental Response, arguing it was untimely filed.[13] Plaintiffs filed an opposition to the Motion to Strike on November 15, 2021.[14] On November 17, 2021, a docket text order was entered construing the opposition as a motion under Federal Rules of Civil Procedure 6(b) and directing Defendants to file a further reply.[15] Defendants did so on November 29, 2021.[16]

UNDISPUTED MATERIAL FACTS

1. On March 21, 2016, Plaintiffs Farooq Nasserziayee, Lenore Supnet, and their daughter M.N. went horseback riding at Jacob’s Ranch.[17]

2. Prior to the start of the ride, Supnet signed a liability waiver (the “Release”) on behalf of her, Nasserziayee, and M.N.[18]

3. The Release contained the following relevant language:

INHERENT RISKS/ASSUMPTION OF RISKS: I ACKNOWLEDGE THAT: Horseback riding is classified as RUGGED ADVENTURE RECREATIONAL SPORT ACTIVITY & that risks, conditions, & dangers are inherent in (meaning an integral part of) horse/equine/animal activities regardless of all feasible safety measures which can be taken & I agree to assume them. The inherent risks include, but are not limited to any of the following: The propensity of an animal to behave in ways that may result in injury, harm, death, or loss to persons on or around the animal. The unpredictability of an equine’s reaction to sounds, sudden movement, unfamiliar objects, persons, or other animals. Hazards including but not limited to surface or subsurface conditions. A collision, encounter and/or confrontation with another equine, another animal, a person or an object. The potential of an equine activity participant to act in a negligent manner that may contribute to injury, harm, death, or loss to the participant or to other persons, including but not limited to failing to maintain control over an equine and/or failing to act within the ability of the participant . . . . I also acknowledge that these are just some of the risks & I agree to assume others not mentioned above.

. . .

I/WE AGREE THAT: I for myself & on behalf of my child and/or legal ward have been fully warned & advised by THIS STABLE that protective headgear/helmet, which meets or exceeds the quality standards of the SEI CERTIFIED ASTM STANDARD F 1163 Equestrian Helmet should be worn while riding, handling and/or being near horses & I understand that the wearing of such headgear/helmet at these times may reduce severity of some of the wearer’s head injuries & possibly prevent the wearer’s death from happening as the result of a fall & other occurrences. I/WE ACKNOWLEDGE THAT: THIS STABLE has offered me, & my child and/or legal ward if applicable, protective headgear/helmet that meets or exceeds the quality standards of the SEI CERTIFIED ASTM STANDARD F 1163 Equestrian Helmet. I/WE ACKNOWLEDGE THAT: Once provided, if I choose to wear the protective headgear/helmet offered that I/WE will be responsible for properly securing the headgear/helmet on the participant’s head at all times. I am not relying on THIS STABLE and/or its associates to check any headgear/helmet strap that I may wear, or to monitor my compliance with this suggestion at any time now or in the future.

. . .

I AGREE THAT [i]n consideration of THIS STABLE allowing my participation in this activity, under the terms set forth herein, I for myself and on behalf of my child and/or legal ward, heirs, administrators, personal representatives or assigns, do agree to release, hold harmless, and discharge THIS STABLE, its owners, agents, employees, officers, directors, representatives, assigns, members, owners of premises and trails, affiliated organizations, and Insurers, and others acting on their behalf (hereinafter, collectively referred to as “Associates”), of and from all claims, demands, causes of action and legal liability, whether the same be known or unknown, anticipated or unanticipated, due to

THIS STABLE’S and/or ITS ASSOCIATE’S ordinary negligence or legal liability; and I do further agree that except in the event of THIS STABLE’S gross negligence and/or willful and/or wanton misconduct, I shall not bring any claims, demands, legal actions and causes of action, against THIS STABLE and ITS ASSOCIATES as stated above in this clause, for any economic or non-economic losses due to bodily in[j]ury and/or death and/or property damage, sustained by me and/or my minor child or legal ward in relation to the premises and operations of THIS STABLE, to include while riding, handling, or otherwise being near horses owned by me or owned by THIS STABLE, or in the care, custody or control of THIS STABLE, whether on or off the premises of THIS STABLE, but not limited to being on THIS STABLE’S premises.[19]

4. Plaintiffs allege that at some point during the ride, M.N. fell off her horse and was injured.[20]

DISCUSSION

Defendant’s Motion to Strike is Denied

Defendants moved to strike Plaintiffs’ Supplemental Response under Fed. R. Civ. P. 6, arguing it was filed untimely.[21] Although Defendant is correct that the Supplemental Response was filed untimely, the Motion to Strike will be denied.

DuCivR 7(1)(b)(3)(a) requires a party responding to a motion for summary judgment to file the response within 28 days of service.[22] Plaintiffs do not dispute that the Supplemental Response was filed more than 28 days after the Motion was served. Therefore, the Supplemental Response was filed untimely.

Rule 6 of the Federal Rules of Civil Procedure allows for an extension of a deadline after the deadline has passed. The United States Supreme Court has instructed courts that “any postdeadline extension [under Rule 6] must be on ‘upon motion made’ . . . .”[23] However, Rule 6(b)(1) should be “liberally construed to advance the goal of trying each case on the merits.”[24]Ute Indian Tribe of the Uintah & Ouray Rsrv. v. McKee[25]construed an opposition to a motion to strike as a “motion made” under Rule 6(b). For the same reasoning, the Supplemental Response is construed as a motion under Rule 6(b). Like the opposition in Ute Indian Tribe, the Supplemental Response contains a high degree of formality and precision, and presents arguments for an extension under Rule 6. Defendants have been noticed of and were permitted to respond to Plaintiffs’ arguments in the form of a reply. Therefore, the filing will be accepted if Plaintiffs have demonstrated excusable neglect.

When considering whether a Rule 6(b)(1) movant has shown excusable neglect, a court should consider (1) the danger of prejudice to the nonmoving party; (2) the length of the delay and any impact it may have on judicial proceedings; (3) the reason for the delay, including whether it was within reasonable control of the movant; and (4) whether the movant acted in good faith (the “Pioneer factors”).[26] Defendants filed their Motion for Summary Judgment on September 16, which included three new affidavits which Plaintiffs claim had not been disclosed to them prior to the Motion’s filing.[27] Plaintiffs filed a timely response on October 14[28], and then a supplemental response on October 28, which included a new affidavit from Mike Pelly, who was in the riding party when M.N. was allegedly injured.[29] Plaintiffs assert the reason for the late filing of the supplemental affidavit was that due to Defendants’ recent disclosure of new evidence, they were “put in the position of having to investigate, contact witnesses, and obtain refuting Affidavits on short notice.” and they were unable to obtain the Pelly affidavit prior to October 28.[30]

While Plaintiffs should have filed a motion to extend time, their actions are excusable under the circumstances. There is little danger of prejudice to Defendants, as they were able to respond to Plaintiffs’ arguments concerning the supplemental affidavit in a Supplemental Reply.[31] The length of the delay was only a matter of weeks, which courts have typically found to not be substantial, and will have minimal impact or delay on trial.[32] And all indications are that Plaintiffs acted in good faith. At least three of the four Pioneer factors favor a finding of excusable neglect. Accordingly, Defendants’ Motion to Strike will be denied, and Plaintiffs’ Supplemental Response and attached affidavit will be accepted.

Defendants’ Motion for Summary Judgment Will be Granted in Part and Denied in Part

“Summary judgment is proper if the movant demonstrates that there is “no genuine issue as to any material fact” and that it is “entitled to a judgment as a matter of law.”[33] In applying that standard, a court views the factual record and any reasonable inferences therefrom in the light most favorable to the nonmoving party.[34] There is a genuine dispute of material fact if, based on the record as a whole, a reasonable factfinder could find in favor of the nonmoving party.[35]

A reasonable factfinder could find that Defendants were grossly negligent. Therefore, summary judgment will be denied on that count. However, a reasonable factfinder could not find Defendants committed intentional infliction of emotional distress. Therefore, summary judgment will be granted on that count.

A
Reasonable Factfinder Could Conclude Defendants Were Grossly Negligent

The Prior Ruling identified two pieces of evidence Plaintiffs submitted which, if believed by a jury, could support a finding of gross negligence. First, Plaintiffs submitted evidence that helmets were not offered. Second, Plaintiffs submitted evidence that Clay Doe encouraged the horses to go faster at one point, even though the horses carried inexperienced riders.

“In Utah, gross negligence is ‘the failure to observe even slight care; it is carelessness or recklessness to a degree that shows utter indifference to the consequences that may result.'”[36]Under Utah law, resolution of a gross negligence claim is typically within the province of the factfinder.[37] Summary judgment is only appropriate on a gross negligence claim when “reasonable minds could reach but one conclusion” as to whether a defendant observed even slight care.[38]

After submitting multiple sets of affidavits alongside a renewed motion for summary judgment, Moving Defendants argue they have established that no reasonable fact finder could find helmets were not offered or the horses were encouraged to go faster. But the new affidavits only set up genuine issues of material fact, asking the court to resolve disputed questions of fact or credibility. Those questions are more properly addressed to the factfinder. Because there is sufficient evidence for a factfinder to conclude helmets were not offered to the group or that the horses were encouraged to go faster, and these acts may have caused M.N.’s injuries, summary judgment will be denied.

(1) There is Sufficient Evidence for a Factfinder to Conclude Helmets were not Offered to the Group

A reasonable factfinder could also conclude that Plaintiffs were not offered helmets by Moving Defendants. Plaintiffs have submitted affidavits by both Supnet[39] and a third-party present on the trail ride that day, Mike Pelley[40], that they did not observe helmets being offered to the group. Moving Defendants counters with affidavits from Jack Ruggles[41], Sheryl Mintz (who was a wrangler on the day of the incident at question)[42], and Dr. Fred Schwendeman, another third-party on the trail ride[43], that they observed helmets were made available to all members of the ride. It is the province of the factfinder, not a court ruling on a motion for summary judgment, to resolve competing and contradictory pieces of evidence.

Defendants argue that even taking Plaintiffs’ proffered affidavits as true, no factfinder could conclude that helmets were not offered to the group.[44] They argue the witnesses cannot testify that no one received a helmet, just that they did not personally observe any helmets being offered. But a reasonable factfinder could infer from Supnet and Pelley’s affidavits that no helmets were offered to the group. Taking all inferences in the light most favorable to Plaintiffs, a reasonable factfinder could find that helmets were not offered to the group.

Defendants also suggest that because Plaintiffs signed the Release, which contains a clause agreeing that the signer had been offered a helmet, no factfinder could conclude that Plaintiffs were not offered helmets.[45] While that clause may be evidence that Plaintiffs were offered helmets and may be relevant in evaluating an assumption of risk defense, it is not dispositive of helmets being actually provided. Resolution of such a question is within the province of the factfinder.

Moving Defendants also argue that any actions in failing to offer helmets were “at most” negligent, not grossly negligent.[46] The Prior Ruling concluded that a factfinder could find failure to offer helmets was grossly negligent. Moving Defendants have not offered any contrary case law. A reasonable factfinder could conclude a failure to offer helmets on a horseback ride constituted the failure to observe even slight care.

Therefore, a reasonable factfinder could conclude that Plaintiffs were not offered helmets, and such a fact-finding could constitute gross negligence.

(2) There is Sufficient Evidence for a Factfinder to Conclude that Clay Doe Told the Riders to Quicken the Pace.

There is sufficient evidence that Clay Doe may have told the riders to “quicken the pace, ” and that statement could support a claim for gross negligence. Plaintiffs have submitted an affidavit by Supnet that Clay Doe instructed the riders to quicken the pace. Supnet states in her affidavit that she heard Clay Doe make the statement, temporarily left M.N., and then returned to find M.N. fallen and injured on the ground.[47] Defendants argue that this evidence is insufficient to show that the statement to “quicken the pace” was the but for cause of M.N.’s injuries.[48] But in a motion for summary judgment, a court should make all inferences in favor of the non-moving party.[49] A reasonable factfinder could infer from Supnet’s affidavit that Clay Doe’s statement was the but for cause of M.N.’s injury, and led to M.N.’s horse accelerating, M.N. falling off her horse, and M.N.’s injury.

Moving Defendants further argue that Clay Doe was an independent contractor, and therefore, Moving Defendants cannot be liable under this theory.[50] If Clay Doe was an independent contractor, it is possible that Moving Defendants would not be liable for his actions. The status of Clay Doe as an independent contractor depends on many facts.[51] However, resolution of this question would have no effect on the Motion for Summary Judgment because other actions by Moving Defendants, such as the alleged failure to offer helmets, could support a finding of gross negligence. Therefore, whether Clay Doe was an independent contractor will not be resolved at this time.

(3) Plaintiffs’ affidavits are not “self-serving” and are proper to oppose summary judgment.

Defendants additionally argue that the affidavits Plaintiffs submit are “self-serving” and are thus insufficient to oppose summary judgment.[52] Their focus on whether the affidavits are self-serving is misplaced. “[V]irtually any party’s testimony can be considered ‘self-serving,’ and self-serving testimony is competent to oppose summary judgment.”[53] “So long as an affidavit is based upon personal knowledge and sets forth facts that would be admissible in evidence, it is legally competent to oppose summary judgment, irrespective of its self-serving nature.”[54] The affidavits Plaintiffs have submitted are based in key part on the declarant’s firsthand knowledge and observations, and are thus sufficient to oppose summary judgment.

Assumption of Risk Does Not Bar Plaintiffs’ Negligence Claims

Defendants initially argue Plaintiffs assumed the risk of any harm, based on the Release, the inherent risks of horseback riding, and Plaintiffs’ knowing disregard of those risks.[55] To the extent an assumption of the risk argument is relevant here, it will be a question for the factfinder to consider, preventing summary judgment on this issue.

There are three types of assumption of risk in Utah: primary express, primary implied, and secondary.[56]

• Primary express assumption of risk “involves a contractual provision in which a party expressly contracts not to sue for injury or loss which may thereafter be occasioned by the acts of another.”[57]

• Primary implied assumption of risk occurs in inherently risky activities, where the defendant as a matter of law owes no duty of care to a plaintiff for certain risks because no amount of care can negate those risks.[58]

• Secondary assumption of risk occurs when a person voluntarily but “unreasonabl[y] encounter[s] . . . a known and appreciated risk.”[59] Secondary assumption of risk is treated akin to contributory negligence, and is “no longer recognized in Utah as a total bar to recovery.”[60]

While Defendants presumably are arguing that the primary express and primary implied types of assumption of risk are relevant here, their arguments that Plaintiffs knowingly disregarded the risks of horse-riding seems more akin to secondary assumption of risk. Regardless of the type of assumption of risk Defendants are arguing, none would allow summary judgment to be granted on Plaintiffs’ claims.

Primary express assumption of risk does not bar Plaintiffs’ claims. Primary express assumption of risk allows a party to contract with another that they will not sue in case of injury or loss. This type of assumption of risk is more closely related to contract law, and typically takes the form of preinjury liability releases, such as the Release in this case.[61] The Prior Ruling held that the Release does not bar Plaintiffs’ claims for gross negligence. The Release shows that Plaintiffs only agreed to assume those “risks, conditions, & dangers [which] are inherent” to horseback riding. As discussed below, the negligence Defendants are accused of is not the type “inherent” to horseback riding. Accordingly, primary express assumption of risk does not bar Plaintiffs’ claims on this record.

Primary implied assumption of risk does not bar Plaintiffs’ claims. Primary implied assumption of risk only applies to “inherently risky” activities. In order for primary implied assumption of risk to bar a plaintiff’s claims, the injury must have resulted from a risk “inherent” to an activity, and be one that a defendant cannot eliminate through imposition of reasonable care.[62] Utah’s Equine and Livestock Activities Act (the “Act”)[63] has essentially codified this doctrine as it relates to horse-related injuries.[64] Both the Act and the doctrine of primary implied assumption of risk distinguish between injuries resulting from the inherent risks of the relevant activity and injuries resulting from negligent behavior. Inherent risks of horseback riding may include a horse’s propensity to bolt when startled or other unpredictable behavior.[65] It may also refer to a rider’s failure to control the animal or not acting within one’s ability.[66] If an injury “was caused by an unnecessary hazard that could have been eliminated by the use of ordinary care, such a hazard is not . . . an inherent risk” of an inherently risky activity.[67] M.N.’s injury was alleged to have been caused by the grossly negligent behavior of Defendants in failing to offer M.N. a helmet and in urging the horses to speed up. These actions are not unavoidable risks – these risks could be eliminated by use of reasonable care. Whether primary implied assumption of risk could bar Plaintiffs’ claims depends on the factfinder’s conclusions as to what caused the injury. The disputed factual circumstances surrounding M.N.’s injury means that this question is not amenable to resolution on summary judgment. Therefore, primary implied assumption of risk would not bar M.N.’s claims at this stage.

Secondary assumption of risk does not bar Plaintiffs’ claims. Secondary assumption of risk, “the unreasonable encountering of a known and appreciated risk, ” is more properly viewed as an “aspect of contributory negligence.”[68] Contributory negligence is not a complete bar to recovery, but rather involves the apportionment of fault. Once the combined negligence of plaintiff and defendant has been established, evaluation of a comparative or contributory negligence defense is within the province of the factfinder.[69] There are genuine issues of material fact regarding both Defendants’ and Plaintiffs’ alleged negligence.[70] Therefore, it will fall to the fact finder to apportion fault in this case, and summary judgment based on secondary assumption of risk will not be granted.

The Prior Ruling Granted Summary Judgment on the Negligent Infliction of Emotional Distress Claim

Moving Defendants argue that summary judgment should be granted on the negligent infliction of emotional distress claim. The Prior Ruling already granted summary judgment on that claim, ruling that a negligent infliction of emotional distress claim was barred by the Release. Therefore, this argument is moot.

Summary Judgment Will be Granted on the Intentional Infliction of Emotional Distress Claim

Moving Defendants also request summary judgment on Plaintiffs’ intentional infliction of emotional distress claim (“IIED”). As Defendants correctly point out, the Prior Ruling did not rule on whether sufficient evidence had been presented to support an IIED claim, but only concluded that an IIED claim was not barred by the Release.

To establish a claim for IIED under Utah law, Plaintiffs must prove that (1) Defendants’ conduct was outrageous and intolerable; (2) that Defendants intended to cause or acted in reckless disregard of the likelihood of causing emotional distress; (3) that Plaintiffs suffered emotional distress; and (4) that distress was proximately caused by Defendants.[71] “[T]o to sustain a claim for intentional infliction of emotional distress, a defendant’s alleged conduct must be more than unreasonable, unkind, or unfair[;] it must instead be so severe as to ‘evoke outrage or revulsion.'”[72] Conduct is not outrageous merely because it is “tortious, injurious, or malicious, or because it would give rise to punitive damages, or because it is illegal.” Rather, Utah courts have described the type of conduct required to sustain a claim for IIED as “extraordinary vile conduct, conduct that is atrocious, and utterly intolerable in a civilized society.”[73] The Tenth Circuit has similarly described Utah law as setting “high standards” to establish a claim for IIED.[74]

No reasonable factfinder could find that the conduct alleged by Plaintiffs rises to the level of outrage. Defendants’ alleged conduct in failing to provide a helmet and encouraging inexperienced riders to “quicken the pace” could evidence Defendants failed to observe even slight care, which would be sufficient to state a claim for gross negligence.[75] But as a matter of law, the alleged conduct does not constitute the extreme and outrageous conduct which Utah courts have required to establish a claim for IIED.

CONCLUSION AND ORDER

For the foregoing reasons, Moving Defendant’s Motion[76] is GRANTED IN PART and DENIED IN PART. Summary Judgment will be entered on the claim for Intentional Infliction of Emotional Distress. Summary Judgment will not be entered on the claim for gross negligence. Additionally, Defendants’ Motion to Strike[77] is DENIED.

18

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Notes:

[1] Complaint, docket no. 2, filed March 4, 2019.

[2]
Id. at 3-4.

[3] First Amended Complaint, docket no. 33, filed April 14, 2020, at 3-4.

[4] Motion to Dismiss and for Summary Judgment by Defendants Jack Ruggles, Jane Doe Ruggles, and Zion Canyon Trail Rides at Jacob’s Ranch, LLC, docket no. 38, filed October 30, 2020.

[5]
Nasserziayee v. Ruggles, No. 4:19-CV-00022 DN PK, 2021 WL 778603 (D. Utah Mar. 1, 2021).

[6]
Id. at *4.

[7] Id.

[8]
Id. at *5.

[9] Docket no. 63, filed September 16, 2021.

[10] Plaintiffs’ Response to Defendants Ruggles’ and Zion Canyon Trail Rides at Jacob’s Ranch, LLC’s Motion for Summary Judgment on All Remaining Issues, docket no. 68, filed October 14, 2021.

[11] Plaintiffs’ Supplemental Response to Defendants Ruggles’ and Zion Canyon Trail Rides at Jacob’s Ranch, LLC’s Motion for Summary Judgment on All Remaining Issues, docket no. 70, filed October 28, 2021.

[12] Defendants’ Reply Memorandum Supporting Motion for Summary Judgment by Defendants Jack Ruggles, Jane Doe Ruggles, and Zion Canyon Trail Rides at Jacob’s Ranch, LLC on All Remaining Issues, docket no. 71, filed October 28, 2021.

[13] Defendants Jack Ruggles, Jane Doe Ruggles, and Zion Canyon Trail Rides at Jacob’s Ranch, LLC Motion to Strike Docket Document Nos. 70 and 70-1 (“Motion to Strike), docket no. 72, filed November 3, 2021.

[14] Plaintiff’s Response to Defendants Jack Ruggles, Jane Doe Ruggles, and Zion Canyon Trail Rides at Jacob’s Ranch, LLC Motion to Strike Docket Document Nos. 70 and 70-1, docket no. 75, filed November 15, 2021.

[15] Docket no. 77, filed November 17, 2021.

[16] Defendants’ Supplemental Reply Memorandum Supporting Motion for Summary Judgment by Defendants Jack Ruggles, Jane Doe Ruggles, and Zion Canyon Trail Rides at Jacob’s Ranch, LLC on All Remaining Issues, docket no. 78, filed November 29, 2021.

[17] Motion at 4, Statement of Undisputed Facts at ¶1; Opposition at 3-4.

[18] Id.

[19] Motion at 4-5, Statement of Undisputed Facts at ¶2; Opposition at 4-6.

[20] Motion at 10, Statement of Undisputed Facts at ¶20.

[21] Motion to Strike at 2.

[22] DuCivR 7-1.

[23]
Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 873 (1990).

[24]
Rachel v. Troutt, 820 F.3d 390, 394 (10th Cir. 2016).

[25] No. 2:18-CV-00314 CW, 2019 WL 1931713, at *4 (D. Utah May 1, 2019).

[26] Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 395 (1993).

[27] Plaintiff’s Response to Defendants Jack Ruggles, Jane Doe Ruggles, and Zion Canyon Trail Rides at Jacob’s Ranch, LLC Motion to Strike Docket Document Nos. 70 and 70-1 at 2.

[28] Plaintiffs’ Response to Defendants Ruggles’ and Zion Canyon Trail Rides at Jacob’s Ranch, LLC’s Motion for Summary Judgment on All Remaining Issues.

[29] Plaintiffs’ Supplemental Response to Defendants Ruggles’ and Zion Canyon Trail Rides at Jacob’s Ranch, LLC’s Motion for Summary Judgment on All Remaining Issues.

[30] Plaintiff’s Response to Defendants Jack Ruggles, Jane Doe Ruggles, and Zion Canyon Trail Rides at Jacob’s Ranch, LLC Motion to Strike Docket Document Nos. 70 and 70-1 at 2.

[31] Defendants’ Supplemental Reply Memorandum Supporting Motion for Summary Judgment by Defendants Jack Ruggles, Jane Doe Ruggles, and Zion Canyon Trail Rides at Jacob’s Ranch, LLC on All Remaining Issues, docket no. 78, filed November 29, 2021.

[32] See Ute Indian Tribe, 2019 WL 1931713, at *6.

[33]
Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998) (quoting Fed.R.Civ.P. 56(c)).

[34] Adler, 144 F.3d at 670.

[35] See Finlinson v. Millard Cty., 455 F.Supp.3d 1232, 1238 (D. Utah 2020).

[36]
Penunuri v. Sundance Partners, Ltd., 423 P.3d 1150, 1159 (Utah 2017).

[37] Milne v. USA Cycling Inc., 575 F.3d 1120, 1130 (10th Cir. 2009)

[38] Penunuri, 423 P.3d at 1159.

[39] Affidavit of Lenore Supnet, docket no. 68-1, filed October 14, 2021.

[40] Affidavit of Mike Pelley, docket no. 70-1, filed October 28, 2021.

[41] Declaration of Jack Ruggles in Support of Motion for Summary Judgment by Defendants Jack Ruggles, Jane Doe Ruggles, and Zion Canyon Trail Rides at Jacob’s Ranch, LLC on All Remaining Issues, docket no. 64, filed September 16, 2021.

[42] Declaration of Sheryl Mintz in Support of Motion for Summary Judgment by Defendants Jack Ruggles, Jane Doe Ruggles, and Zion Canyon Trail Rides at Jacob’s Ranch, LLC on All Remaining Issues, docket no. 66, filed September 16, 2021.

[43] Declaration of Dr. Fred Schwendeman in Support of Motion for Summary Judgment by Defendants Jack Ruggles, Jane Doe Ruggles, and Zion Canyon Trail Rides at Jacob’s Ranch, LLC on All Remaining Issues, docket no. 67, filed September 16, 2021.

[44] Motion at 11-12.

[45]
Id. at 12-13.

[46] Motion at 11.

[47] Affidavit of Lenore Supnet, docket no. 68-1, filed October 14, 2021, at 4.

[48] Motion at 13.

[49]
Brown v. Parker-Hannifin Corp., 746 F.2d 1407, 1411 (10th Cir. 1984).

[50] Motion at 14.

[51] The allegation in the Amended Complaint that Defendant Jack (“Pappy”) Ruggles and Defendant Jacobs Ranch stated Defendant Joshua Ruggles was acting as an independent contractor is, like the Moving Defendants’ affidavits, not conclusive of independent contractor status. Amended Complaint at 3.

[52]
Id. at 10-11.

[53]
Greer v. City of Wichita, Kansas, 943 F.3d 1320, 1325 (10th Cir. 2019).

[54]
Janny v. Gamez, 8 F.4th 883, 900 (10th Cir. 2021) (quoting Speidell v. United States ex rel. IRS, 978 F.3d 731, 740 (10th Cir. 2020)).

[55] Motion at 16-17.

[56]
Rutherford v. Talisker Canyons Fin., Co., LLC, 445 P.3d 474, 488-89 (Utah 2019).

[57] Jacobsen Const. Co. v. Structo Lite Eng’g, Inc., 619 P.2d 306, 310 (Utah 1980).

[58] Rutherford, 445 P.3d at 489.

[59]
Id. (quoting Moore v. Burton Lumber & Hardware Co., 631 P.2d 865, 870 (Utah 1981)) (alterations and omission in original).

[60]
Hale v. Beckstead, 116 P.3d 263, 268 (Utah 2005).

[61] See Rutherford, 445 P.3d at 489.

[62] Id.

[63] Utah Code Ann. § 78B-4-202(2).

[64] See Feldman v. Salt Lake City Corp., 484 P.3d 1134, 1145 (Utah 2021) (discussing how the Utah legislature codified primary implied assumption of risk in the context of recreational park related injuries).

[65] See Penunuri v. Sundance Partners, Ltd., 301 P.3d 984, 989 (Utah 2013).

[66] Utah Code Ann. § 78B-4-201(5).

[67] See Clover v. Snowbird Ski Resort, 808 P.2d 1037, 1047 (Utah 1991) (discussing primary implied assumption of risk in the context of ski resorts).

[68] Moore, 631 P.2d at 870.

[69] See Acculog, Inc. v. Peterson, 692 P.2d 728, 730 (Utah 1984).

[70] See Mason v. Brigham Young Univ., No. 2:06-CV-826 TS, 2008 WL 312953, at *2 (D. Utah Feb. 1, 2008).

[71] Retherford v. AT & T Commc’ns of Mountain States, Inc., 844 P.2d 949, 971 (Utah 1992), holding modified by Graham v. Albertson’s LLC, 462 P.3d 367 (Utah 2020).

[72]
Davidson v. Baird, 438 P.3d 928, 945 (Utah App. 2019), cert. denied, 440 P.3d 692 (Utah 2019) (quoting Cabaness v. Thomas, 232 P.3d 486 (Utah 2010), abrogated on other grounds by Gregory & Swapp, PLLC v. Kranendonk, 424 P.3d 897 (Utah 2018)) (internal quotation marks omitted).

[73]
Chard v. Chard, 456 P.3d 776, 791 (Utah App. 2019) (quoting Retherford, 844 P.2d at 977 n.19).

[74]
Hogan v. Winder, 762 F.3d 1096, 1112 (10th Cir. 2014).

[75] Penunuri, 423 P.3d at 1159.

[76] Docket no. 63, filed September 16, 2021.

[77] Docket no. 73, filed November 3, 2021.

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Sturm v. Weber (D. Colo. 2022)

Sturm v. Weber (D. Colo. 2022)

SANDRA STURM, and TIMOTHY STURM and SANDRA STURM, as parents and next friends of their minor child, HOLLY STURM Plaintiff,
v.
JOSEF WEBER a/k/a JOSEPH WEBER, KRABLOONIK, INCORPORATED, Defendants.

Civil Action No. 21-cv-0684-WJM-GPG

United States District Court, D. Colorado

June 16, 2022

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

William J. Martínez United States District Judge

Plaintiffs Sandra Sturm individually, and Sandra and Timothy Sturm as parents and next friends of their minor child, Holly Sturm, (collectively, “the Sturms”) sue Defendants Josef Weber and Krabloonik, Incorporated (jointly, “Defendants”) for negligence, negligent misrepresentation, and, in the alternative, premises liability pursuant to the Colorado Premises Liability Act (“CPLA”), Colorado Revised Statutes §13-21-115, for injuries sustained during a 2019 dogsledding accident in Snowmass Village, Colorado. (ECF No. 5.) This matter is before the Court on Defendants’ Motion for Summary Judgment (“Motion”) (ECF No. 31.) Defendants make one argument- because the Sturms released Defendants of all claims for negligence, Plaintiffs cannot maintain this lawsuit as a matter of law. (ECF No. 31 at 2.) In support, Defendants attach signed copies of Krabloonik’s Participant Agreement, Release and Assumption of Risk (“Participant Agreement”) (ECF No. 31-1 at 3-4.)

Due to the early stage of the litigation at which the Motion was filed and the purely legal basis of Defendants’ argument, the record was not as robust as the Court would normally see on a motion for summary judgment. No doubt this in great part reflects the fact that the Motion was filed prior to the close of discovery. Given the legal nature of Defendants’ sole argument, and state of the record at the time the Motion was filed, the Court exercises its discretion to construe the Motion as a motion directed to the sufficiency of the factual allegations of Plaintiffs’ operative complaint under Federal Rules of Civil Procedure Rule 12(b)(6) (“Construed Motion”). For the reasons set forth below, the Construed Motion is granted in part and denied in part.

I. BACKGROUND[1]

Krabloonik is a recreational dogsled operation in Snowmass Village, Colorado. (ECF No. 31 at 2.) Krabloonik employs “mushers” to steer the dogsleds during the rides it offers its customers. (See ECF No. 31 at 1-2.) Krabloonik’s dogsleds are not equipped with track-braking systems; instead, mushers are trained to use resistance and counterbalance to steer and control the speed of Krabloonik’s dogsleds. (ECF No. 32 at 11; ECF 38-1 at 2.) Josef Weber operated Sandra and Holly Sturm’s dogsled on March 11, 2019. (ECF No. 31 at 3 ¶¶ 6-7.)

Prior to embarking on the dogsled ride with Weber, Sandra and Timothy Sturm each signed a copy of Krabloonik’s Participant Agreement. (See ECF No. 31-1 at 3-4; ECF No. 31-2 at 10.) The parties agree that Sandra Sturm signed the Participation Agreement on her own behalf. (ECF No. 31 at 2.) The parties disagree, however, on whether the Participation Agreement signed by Timothy Sturm was properly signed on behalf of Holly Sturm. (See ECF No. 31 at 2; ECF No. 32 at 4.)

The Participant Agreement provides two spaces for signatures: one for customers 18 years of age and over to sign for themselves, and one for parents or guardians to sign on behalf of a minor. (ECF No. 31-1 at 3.) The section to be completed on behalf of a minor provides a large space with instruction to “print [the] minor’s name].” (Id.) Holly Sturm’s name does not appear on this line on either copy of the Participant Agreement completed by the Sturms. (Id. at 3-4.) The form completed by Timothy Sturm has “Timothy Whitney Holly” written at the bottom of the page on and near the line provided for the signature of the minor’s parent or guardian. (Id. at 3.)

The Participant Agreement included the following exculpatory provisions:

I hereby agree to release, indemnify, and discharge KKEN, [2]on behalf of myself, my spouse, my children, my parents, my heirs, assigns, personal representative and estate as follows:

1. I acknowledge that my participation in dog sled tour activities entails known and unanticipated risks that could result in physical or emotional injury, paralysis, death, or damage to myself, to property, or to third parties….

The risks include, among other things: . . . losing control of the dogs may result in collisions with other sleds and/or manmade and natural objects such as bridges, trees, rocks, cliffs, streams and other obstacles; . . . equipment failure; . . . I understand that sled dog touring is a wilderness activity that exposes me to all elements of the outdoors and natural surroundings.

Furthermore, KKEN employees have difficult jobs to perform. They seek safety, but they are not infallible. They might be unaware of a participant’s fitness or abilities. They might misjudge the weather or other environmental conditions. They may give incomplete warnings or instructions, and the equipment being used might malfunction.

2. I expressly agree and promise to accept and assume all of the risks existing in this activity. My participation in this activity is purely voluntary, and I elect to participate in spite of the risks.

3. I hereby voluntarily release, forever discharge, and agree to indemnify and hold harmless KKEN from any and all claims, demands, or causes of action, which are in any way connected with my participation in this activity or my use of KKEN’s equipment or facilities, including any claims which allege negligent acts or omissions of KKEN….

By signing this document, I acknowledge that if anyone is hurt or property is damaged during my participation in this activity, I may be found by a court of law to have waived my right to maintain a lawsuit against KKEN on the basis of any claim from which I have released herein.

I have had sufficient opportunity to read this entire document. I have read and understood it, and I agree to be bound by its terms….

In consideration of (print minor’s name) (“Minor”) being permitted by KKEN to participate in its activities and to use its equipment and facilities . . . I further agree to indemnify and hold harmless KKEN from any and all claims which are brought by, or on behalf of Minor . . . connected with such use or participation by Minor.

(ECF No. 31-1 at 3 (emphasis in original).)

According to his Musher Accident Report, Weber steered the dogsled into a rut, causing it to tip. (ECF No. 32-12.) When Weber attempted to level the dogsled, he fell off, leaving Sandra and Holly Sturm on a runaway sled. (Id.) Without Weber to break and steer, the dogsled did not come to a stop until it collided with a tree. (Id.) Plaintiffs claim that as a result of the collision, Holly Sturm suffered a broken leg that had to be surgically repaired and Sandra Sturm injured her elbow. (ECF No. 5 at 4 ¶¶ 22, 28.) Per the Amended Complaint, Holly Sturm also suffers from PTSD, mental stress, and anxiety as a result of the dogsledding incident. (Id. at 4 ¶ 22.)

II. LEGAL STANDARD

Under Federal Rule of Civil Procedure 12(b)(6), a party may move to dismiss a cause of action for “failure to state a claim upon which relief can be granted.” The 12(b)(6) standard requires the Court to “assume the truth of the plaintiff’s well-pleaded factual allegations and view them in the light most favorable to the plaintiff.” Ridge at Red Hawk, LLC v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007). In ruling on such a motion, the dispositive inquiry is “whether the complaint contains ‘enough facts to state a claim to relief that is plausible on its face.'” Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Granting a motion to dismiss “is a harsh remedy which must be cautiously studied, not only to effectuate the spirit of the liberal rules of pleading but also to protect the interests of justice.” Dias v. City & Cnty. of Denver, 567 F.3d 1169, 1178 (10th Cir. 2009) (internal quotation marks omitted). “Thus, ‘a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and that a recovery is very remote and unlikely.'” Id. (quoting Twombly, 550 U.S. at 556).

III. ANALYSIS

In the Construed Motion Defendants argue that the Participation Agreement bars all of Plaintiffs’ claims. Plaintiffs argue that dismissal is inappropriate for two reasons: (1) under Colorado law, an exculpatory agreement cannot shield against willful and wanton acts or omissions; and (2) the Participation Agreement is invalid under Jones v. Dressel, 623 P.2d 370 (Colo. 1981).

A. Holly Sturm’s Claims

Timothy Sturm, as Holly Sturm’s parent, is permitted to waive negligence claims on her behalf. See C.R.S. § 13-22-107(3) (“A parent of a child may, on behalf of the child, release or waive the child’s prospective claim for negligence.”) Therefore, the Court agrees with Defendants that the lack of Holly Sturm’s signature is irrelevant. Notwithstanding this fact, the Court cannot find as a matter of law that the Participation Agreement signed by Timothy Sturm is an effective release of his daughter’s claims. No name-let alone Holly’s-appears in the clearly marked space provided to identify the minor whose claims are being released, and neither party has explained to the Court who “Whitney” is. Therefore, the Court denies the Construed Motion with respect to Holly Sturm’s claims.

B. Sandra Sturm’s Claims

“Under Colorado law, ‘exculpatory agreements have long been disfavored,’ B & B Livery, Inc. v. Riehl, 960 P.2d 134, 136 (Colo. 1998), and it is well-established that such agreements cannot ‘shield against a claim for willful and wanton conduct, regardless of the circumstances or intent of the parties,’ Boles v. Sun Ergoline, Inc., 223 P.3d 724, 726 (Colo. 2010).” Brigance v. Vail Summit Resorts, Inc., 883 F.3d 1243, 1249 (10th Cir. 2018). “But claims of negligence are a different matter. Colorado common law does not categorically prohibit the enforcement of contracts seeking to release claims of negligence.” Espinoza v. Ark. Valley Adventures, LLC, 809 F.3d 1150, 1152 (10th Cir. 2016).

“The determination of the sufficiency and validity of an exculpatory agreement is a question of law for the court to determine.” Jones v. Dressel, 623 P.2d 370, 376 (Colo. 1981). Accordingly, the Colorado Supreme Court has instructed courts to consider the following four factors when determining the enforceability of an exculpatory agreement: “(1) the existence of a duty to the public; (2) the nature of the service performed; (3) whether the contract was fairly entered into; and (4) whether the intention of the parties is expressed in clear and unambiguous language [collectively, the ‘Jones factors’].” Id. An exculpatory agreement “must satisfy all four factors to be enforceable.” Raup v. Vail Summit Resorts, Inc., 734 Fed.Appx. 543, 546 (10th Cir. 2018).

1. Willful and Wanton Conduct

Plaintiffs argue that the exculpatory provisions of the Participation Agreement cannot be enforced in this instance because Plaintiffs’ injuries are the result of Defendants’ willful and wanton conduct. (ECF No. 32 at 8.) Defendants argue the Court cannot consider whether Defendants’ conduct was willful and wanton because Plaintiffs have not properly pleaded such conduct in the Amended Complaint. (ECF No. 31 at 12.) Plaintiffs erroneously claim that they do not need to have pleaded willful and wanton conduct for the Court to consider their arguments.[3] (ECF No. 32 at 15-16; s ee Suddith v. Citimortgage, Inc., 79 F.Supp.3d 1193, 1198 n.2 (citing Jojola 55 F.3d 488, 494 (10th Cir. 1995)).) While Plaintiffs do not explicitly describe Defendants’ conduct as “willful and wanton” in the Amended Complaint (see ECF No. 5), the sufficiency of Plaintiffs’ pleading is determined by the presence (or lack) of facts rather than talismanic phrases. See Schneider, 493 F.3d at 1177.

The Court has reviewed the Amended Complaint, in the light most favorable to Plaintiffs, with an eye for allegations that might sufficiently plead willful and wanton conduct. Under Colorado law, “[w]illful and wanton conduct is purposeful conduct committed recklessly that exhibits an intent consciously to disregard the safety of others.” Forman v. Brown, 944 P.2d 559, 564 (Colo.App. 1996). The Court finds only one allegation that can fairly be characterized as pleading conscious disregard for the safety of others. In their Second Claim for Relief (Negligence – Krabloonik, Inc.), Plaintiffs allege Defendant Krabloonik “put[] profit over safety by deliberately choosing to continue dog sledding trips on unsafe terrain and in unsafe weather conditions.” (ECF No. 5 at 8 ¶ 42.a.) Though this allegation is relatively thin, the Court finds that when considered in connection with the factual allegations relating to the icy terrain, lack of snow, and obstacles on the dogsled track, it is sufficient to plead willful and wanton conduct. Therefore, Defendants’ Construed Motion is denied with respect to Sandra Sturm’s Second Claim for Relief.

2. Validity of the Participation Agreement Under Jones

Defendants discuss each of the four Jones factors. (ECF No. 31 at 3-11.) In their Response, Plaintiffs only address the fourth Jones factor and concede that “[f]or recreational releases such as the one at issue here, the issue generally turns on the final Jones factor.” (ECF No. 32 at 17.) Given Plaintiffs’ concession, the Court concludes that the Participation Agreement satisfies the first three Jones factors, and therefore the Court need only address the fourth factor.

Under the fourth factor, “[t]he inquiry should be whether the intent of the parties was to extinguish liability and whether this intent was clearly and unambiguously expressed.” Heil Valley Ranch, Inc. v. Simkin, 784 P.2d 781, 785 (Colo. 1989). The Colorado Supreme Court has explained that “[t]o determine whether the intent of the parties is clearly and unambiguously expressed, [a court may] examine[ ] the actual language of the agreement for legal jargon, length and complication, and any likelihood of confusion or failure of a party to recognize the full extent of the release provisions.'” Chadwick v. Colt Ross Outfitters, Inc., 100 P.3d 465, 467 (Colo. 2004).

After carefully analyzing the Participation Agreement, the Court finds that it was the intent of the parties to extinguish liability, and this intent was clearly and unambiguously expressed. The language in the Participation Agreement is not overburdened with extensive or complex legal jargon, nor is the Participation Agreement inordinately long (less than a page) or unusually complicated. See Lahey v. Covington, 964 F.Supp. 1440, 1445 (D. Colo. 1996) (concluding that a release agreement of “just over one page” was “short”).

Moreover, the Court finds that the organization of the Participation Agreement makes it highly unlikely that the exculpatory provisions could have been missed or reasonably misunderstood. See Chadwick, 100 P.3d at 468. The very top of the form reads, in bold font and all capital letters, “PARTICIPATION AGREEMENT, RELEASE AND ASSUMPTION OF RISK.” (ECF No. 31-1 at 3.) Sections of the Participation Agreement are written in bold font to draw the eye, including provisions highlighting the wide range of risks related to participation in the dogsled ride and releasing potential future claims alleging “negligent acts or omissions.” (Id.) Immediately above Sandra and Timothy Sturm’s signatures are two sentences whereby they acknowledged the opportunity to read the Participation Agreement in full and agreed that they had in fact read and understood it. (ECF No. 31-1 at 3-4.) The Court therefore finds that, under the standard articulated by the Colorado Supreme Court in Chadwick, the exculpatory provisions of the Participation Agreement were clear and unambiguous. See Chadwick, 100 P.3d at 467-68.

Plaintiffs maintain that the Participation Agreement is not enforceable because the provisions do not contain “specific language making reference to specific risks, specific activities, and specifically waiving personal injury claims based on the activity being engaged in.” (ECF No. 32 at 18 (citing Wycoff v. Grace Church of the Assemblies of God, 251 P.3d 1260, 1265 (Colo.App. 2010)).) According to Plaintiffs, because the Participation Agreement does not explicitly reference the possibility of the precise course of events Plaintiffs allege occurred, [4] the exculpatory provisions therein are invalid. (ECF No. 32 at 18-22.)

Contrary to Plaintiffs’ argument, Colorado law does not require “that an exculpatory agreement describe in detail each specific risk that the signor might encounter. Rather, an exculpatory agreement bars a claim if the agreement clearly reflects the parties’ intent to extinguish liability for that type of claim.” Squires v. Breckenridge Outdoor Educ. Ctr., 715 F.3d 867, 873 (10th Cir. 2013); see also Heil Valley Ranch, 784 P.2d at 785. Here, again, the Court finds that the exculpatory provisions of the Participation Agreement unambiguously reflect the parties’ intent to extinguish liability for Plaintiffs’ type of claims.

Plaintiffs also allege they were injured when Weber lost control of the dogsled Sandra and Holly Sturm were on, causing it to careen into a tree. (ECF No. 5 at 2 ¶¶ 89.) However, Plaintiff “expressly agree[d] and promise[d] to accept and assume all of the risks existing” in the dogsled ride, including “collisions with other sleds and/or manmade and natural objects such as . . . trees.”[5] (ECF No. 31-1 at 3.) Plaintiff alleges Krabloonik failed to install a braking system to help mushers control the speed of dogsleds (ECF No. 5 at 9 ¶ 42), but Plaintiffs expressly waived all “claims which allege negligent acts or omissions” by Defendants. (ECF No. 31-1 at 3 (emphasis in original).) Plaintiffs allege Weber lost control due to icy conditions and because the dogsled hit a rut (see ECF No. 5 at 3 ¶ 11); however, among the risks Plaintiffs agreed to accept and assume was the possibility that Weber might “misjudge the weather or other environmental conditions” and, again, they waived all claims alleging negligence. (ECF No. 31-1.) Thus, it is irrefutable that the Participation Agreement reflects an intent of the parties to extinguish liability for Plaintiffs’ type of claims, and that Plaintiffs’ alleged injuries are the type of injuries contemplated by the Participation Agreement.

For all these reasons, the Court finds that all four of the Jones factors are satisfied and that the exculpatory provisions of Participation Agreement are valid and enforceable as a matter of law. See Anderson v. Eby, 998 F.2d 858, 862 (10th Cir. 1993) (“If the plain language of the waiver is clear and unambiguous, it is enforced as a matter of law.”). In addition, the Court finds Plaintiffs’ claims fall within the scope of the enforceable Participation Agreement. Accordingly, dismissal of Sandra Stum’s claims, other than her Second Claim for Relief, is appropriate.

IV. CONCLUSION

Since the Construed Motion was briefed, discovery in this case has closed. In this Order the Court has considered and ruled on the Construed Motion solely in light of the pleading requirements of Rule 12(b)(6). As a result, the parties have not yet had the opportunity to fully brief the question, as it regards the claims not dismissed by the terms of this Order, of whether there are no genuine issues of material fact entitling the movant under Rule 56 to judgment as a matter of law. Therefore, the provisions of WJM Revised Practice Standards III.F.2 notwithstanding, the Court will grant Defendants leave to file a renewed motion under Rule 56 addressing all evidence in the record through the close of discovery, and directed solely to the remaining claims in this case.

For the reasons set forth above, the Court ORDERS as follows:

1. Defendants’ Construed Motion to Dismiss (ECF No. 31) is GRANTED IN PART and DENIED IN PART as set forth above;

2. Defendants are granted leave to file a renewed motion for summary judgment by no later than July 15, 2022;

3. Plaintiffs shall file their response to Defendants’ motion for summary judgment, if any, by no later than August 5, 2022; and

4. Defendants shall file their reply in support of their renewed motion, if any, by no later than August 19, 2022.

———

Notes:

[1] The following facts are undisputed unless attributed to a party or otherwise noted. All citations to docketed materials are to the page number in the CM/ECF header, which sometimes differs from a document’s internal pagination.

[2] KKEN is defined as “Krabloonik Kennels, their agents, owners, officers, volunteers, participants, employees, and all other persons or entities acting in any capacity on their behalf” in the Participant Agreement. (ECF No. 31-1 at 3.)

[3] Plaintiffs also argue that, if the Court finds their pleading insufficient, they can amend under Rule 15. However, Plaintiffs have not requested leave to amend. Even if the Court construes this argument as a motion for leave to amend their complaint, Plaintiffs’ mid-brief request directly violates D.C.COLO.LCivR 7.1(d)’s admonition that “[a] motion shall not be included in a response or reply to the original motion. A motion shall be filed as a separate document.” It also contradicts the undersigned’s more explicit instructions in his Revised Practice Standard III.B. Therefore, the Court considers this argument no further.

[4] Plaintiffs stress that Krabloonik was on notice from prior incidents that certain risks might materialize. (See, e.g., ECF No. 32 at 18) (“[In the Participation Agreement” there is a complete lack of discussion on numerous specific safety risks which Krabloonik was well aware of prior to the incident.”).)

[5] Plaintiff argues that this provision is not specific enough to effectively waive liability because it indicates that losing control of dogs, rather than mushers falling off the dogsled, can lead to collisions with trees. (ECF No. 32 at 18-19.) The Court disagrees. The portion of the Participation Agreement containing this phrase is merely a set of examples, and not an exhaustive, itemized list of potential harms being disclaimed. The Participation Agreement provides that claims arising from collisions with objects resulting in injury are among the types of claims the parties intended to extinguish. Under Jones and Chadwick, this is enough.

———


Release upheld to stop claims for injuries sustained on a high rope’s course.

Plaintiff’s arguments failed because Colorado is supportive of releases.

Sheldon v. Retreat, 2020 U.S. Dist. LEXIS 69461 (D. Colo. 2020)

State: Colorado, US District Court for the District of Colorado

Plaintiff: Jodi Sheldon

Defendant: Golden Bell Retreat d/b/a The Colorado District Church of the Nazarene, d/b/a Golden Bell Ranch and Golden Bell Camp and Conference Center, Cross Bearing Adventures, LLC, Kent Fielden Mcilhany, an individual, and John Doe Corporations 1-10, Defendants

Plaintiff Claims: Colorado’s Premises Liability Act (“PLA”), §13-21-115, C.R.S. negligence against Cross Bearing Adventures (“CBA”), the company which constructed and inspected the course and trained Golden Bell employees on the safety and facilitation of various aspects of the course, and its owner, Kent McIlhany

Defendant Defenses: Release

Holding: For the Defendant

Year: 2020

Summary

The plaintiff signed a release to go to a Church retreat prior to attending the retreat. At the retreat, she was injured on a ropes or challenge course. She sued the retreat, the church and the builder of the course and lost because of the release she had signed.

Facts

The facts in this case are sparse.

On June 29, 2018, plaintiff Jodi Sheldon was seriously injured while participating in a high ropes course at the Golden Bell Ranch (“Golden Bell”).

Ms. Sheldon sued Golden Bell under Colorado’s Premises Liability Act (“PLA”), §13-21-115, C.R.S. She also brought a claim of negligence against Cross Bearing Adventures (“CBA”), the company which constructed and inspected the course and trained Golden Bell employees on the safety and facilitation of various aspects of the course, and its owner, Kent McIlhany

The defendants claim the plaintiff’s claims are barred by the release she signed.

Ms. Sheldon received the Waiver from her aunt3 after having been given a list of activities offered at Golden Bell and indicating her interest in participating in the high ropes course.

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

The court started its analysis of the case by reviewing case law on releases.

Exculpatory agreements “stand at the crossroads of two competing principles: freedom of contract and responsibility for damages caused by one’s own negligent acts,” Thus, although such agreements are generally disfavored, and cannot “shield against a claim for willful and wanton conduct, regardless of the circumstances or intent of the parties,” “Colorado common law does not categorically prohibit the enforcement of contracts seeking to release claims of negligence,”

The court then reviewed the four factors that affect the validity of a release under Colorado law.

Colorado courts have identified four factors which inform the decision whether to enforce an exculpatory agreement: “(1) the existence of a duty to the public; (2) the nature of the service performed; (3) whether the contract was fairly entered into; and (4) whether the intention of the parties is expressed in clear and unambiguous language.”

If a release meets any of the four factors, then under Colorado law, the release is unenforceable. The first two factors can be ignored because the activities were recreational in nature. Colorado courts have long held that there is no public policy or necessity in recreational cases.

The same applies to the third test, because the services offered were recreational in nature, the third test does not apply.

Nor is there any argument or evidence to establish that the third factor – whether the contract was fairly entered into – is applicable here. Indeed, because recreational activities are not considered either essential services or practically necessary, “a person is not ‘at the mercy’ of a business’s negligence when entering an exculpatory agreement involving recreational activities.”

Consequently, under Colorado law only the fourth test can be used to show a release should be void in a recreational case. This test is a simple legal test, is the release written properly and does it convey to the possible plaintiff the intention of the document.

Thus, whether the Waiver is enforceable turns exclusively on the fourth factor, “whether the intention of the parties is expressed in clear and unambiguous language.” In analyzing this factor, the court focuses on whether the parties’ intent to “extinguish liability . . . was clearly and unambiguously expressed.”

The plaintiff argued the language of the release did not cover the risks of a high rope’s course. However, the court found the language did cover the risks; the language was broad enough in scope to cover the risks and injury the plaintiff incurred.

Ms. Sheldon insists the Waiver is ambiguous as to whether the high ropes course was within the scope of the activities covered. I am not persuaded. Here, the Waiver defined the term “Activities” as “recreational activities . . . including activities that may be hazardous or otherwise involve a risk of physical injury or death to participants.” (Emphasis added.) The use of the term “including” plainly signifies that some – but not all – of the Activities covered by the Waiver will be hazardous or involve a risk of physical injury. Thus, even accepting Ms. Sheldon’s suggestion that a high ropes course is not a hazardous activity, her argument fails.

Colorado is extremely lenient on the language allows to prevent a claim.

Nor does the Waiver’s failure to refer specifically to the high ropes course render it ambiguous with respect to the type of activities covered. Colorado law does not require “an exculpatory agreement describe in detail each specific risk that the signor might encounter.”

The language was interpreted to be broad enough to protect the builder of the course, also.

Relatedly, the Waiver also clearly bars Ms. Sheldon’s claims against CBA. “A person not a party to an express contract may bring an action on such contract if the parties to the agreement intended to benefit the non-party, provided that the benefit claimed is a direct and not merely an incidental benefit of the contract.”

The plaintiff also argued the waiver lacked consideration because of the lapse in time between when she signed the release and when her injury occurred. The court did not agree.

The Waiver does not fail for lack of consideration. Contrary to Ms. Sheldon’s arguments, the mere lapse of time between her payment to participate in the activity and the date the waiver was delivered to Golden Bell is not fatal to its enforcement. Instead, the pertinent question is whether the release of liability was a contract modification or rather is part of the same transaction and thus enforceable without additional consideration.

Consideration is a benefit flowing from one party to the other. Every contract must have consideration. In 99% of the contracts, consideration is defined as money, an amount. The other side of the contract in consideration for money exchanges or provides services or products. In this case the exchange was a fee, money, paid by the plaintiff in exchange for a service, the ropes course, for the fee paid by the defendant.

The Plaintiff then argued the release should be void because of mutual mistake. That argument failed because the plaintiff could not show where there was any issue that was not clearly covered in the release. If a release is written with clarity and signed, their argument of mutual mistake is nearly impossible to prove.

The doctrine of mutual mistake permits a party to rescind a contract “if all parties labored under the same erroneous conception of the contract’s terms and conditions.”

The mutual mistake argument was then expanded by the plaintiff to say because the state had no licensed the high ropes course, then the release should be void by mutual mistake.

Mutual mistake in a contract means both parties to the contract made the same mistake in the contract unenforceable or such that neither party wants to enforce the contract. Normally in a mutual mistake claim, the court re-writes the contract to meet the terms needed to eliminate the mutual mistake.

The state of Colorado does not license ropes course.

For one thing, it is not clear that Ms. Sheldon’s asserted mistake – that Golden Bell’s high ropes course had been licensed by the state of Colorado – was sufficiently similar to Golden Bell’s mistake – that it did not require such a license – to warrant application of the doctrine at all. Assuming arguendo that it does, however, the doctrine of mutual mistake permits reformation of the contract “where both parties’ understanding of their agreement is contrary to the terms of a written instrument due to a drafting error[.]”(“A mutual mistake claim requires a showing that both parties were laboring under the same erroneous conception of the contract’s terms and conditions.”) (doctrine of mutual mistake applies only to mistakes going to a “basic assumption” underlying the contract)

The plaintiff claimed the mutual mistake was the ropes course was not licensed. There was a mistake that because the course was unlicensed, the contract was not correct, there was a mistake.

There could not be a mutual mistake because no term in the contract, the release, required that one party have the rope’s course licensed. Meaning, a mutual mistake is not a legal theory that brings in outside issues into the analysis of the contract. A mutual mistake is something that was not understood within the contract.

The plaintiff then argued there was a unilateral mistake that should void the release.

[A] unilateral mistake by one party to a contract can permit reformation if the evidence demonstrates that, at the time the contract was formed, the non-mistaken party was aware of the mistaken party’s mistake.” Thus, one party’s unilateral mistake may permit reformation where “the other engaged in fraud or inequitable conduct.

However, there was nothing in the contract, the release or the evidence that could be identified as one party engaging in fraud or inequitable conduct.

None of these circumstances pertains here. It cannot be unconscionable to enforce an exculpatory contract which, like this one, is enforceable under Colorado law. Moreover, there is no hint in the record that Golden Bell knew or had reason to know that Ms. Sheldon did not know its high ropes course was not licensed by the state. Nor is there evidence to suggest Golden Bell was required to make its licensing status known to participants or that it purposefully hid its licensing status from Ms. Sheldon.

The release was upheld to prevent the claims brought against all three defendants.

So Now What?

Release law is written by poor releases. My releases never go to court because they are written to cover the issues like this. The Socratic method used in law school to learn still applies when practicing law, you learn from failure not success.

Here the release squeaked through, because of the breath of the case law in Colorado supporting releases. In other states, this release would fail.

Have your release written by an attorney who understands release law and understands what you do so you do not become a learning opportunity for the rest of your industry.

The remaining arguments made by the plaintiff were without any merit, and I write about them just as additional caution and to understand what those arguments really mean.

What do you think? Leave a comment.

Who am I

Jim Moss

I’m an attorney specializing in the legal issues of the Outdoor Recreation Industry

I represent Manufactures, Outfitters, Guides, Reps, College & University’s, Camps, Youth Programs, Adventure Programs and Businesses

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Sheldon v. Retreat, 2020 U.S. Dist. LEXIS 69461 (D. Colo. 2020)

Sheldon v. Retreat, 2020 U.S. Dist. LEXIS 69461 (D. Colo. 2020)

JODI SHELDON, Plaintiff,
v.
GOLDEN BELL RETREAT d/b/a THE COLORADO DISTRICT CHURCH OF THE NAZARENE,
d/b/a GOLDEN BELL RANCH and GOLDEN BELL CAMP and CONFERENCE CENTER,
CROSS BEARING ADVENTURES, LLC, KENT FIELDEN MCILHANY, an individual,
and JOHN DOE CORPORATIONS 1-10, Defendants.

Civil Action No. 19-cv-01371-REB-NYW

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

April 20, 2020

Judge Robert E. Blackburn

ORDER GRANTING SUMMARY JUDGMENT

Blackburn, J.

The matters before me are (1) the Motion for Summary Judgment on Plaintiff’s Personal Injury Claims Against Golden Bell Retreat d/b/a The Colorado District Church of the Nazarene d/b/a Golden Bell Ranch and Golden Bell Camp and Conference Center [#42],1 filed January 21, 2020; and (2) Defendants Cross Bearing Adventures, LLC’s and Kent Fielden McIlhany’s Motion for Summary Judgment [#55], filed March 9, 2020. I grant both motions and dismiss plaintiff’s remaining claims with prejudice as against the named defendants and without prejudice as against the Doe defendants.

I. JURISDICTION

I have jurisdiction over this matter under 28 U.S.C. §1332 (diversity of citizenship).

II. STANDARD OF REVIEW

Summary judgment is proper when there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. FED. R. CIV. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). A dispute is “genuine” if the issue could be resolved in favor of either party. Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 1356, 89 L.Ed.2d 538 (1986); Farthing v. City of Shawnee, 39 F.3d 1131, 1135 (10th Cir. 1994). A fact is “material” if it might reasonably affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986); Farthing, 39 F.3d at 1134.

A party who does not have the burden of proof at trial must show the absence of a genuine factual dispute. Concrete Works, Inc. v. City & County of Denver, 36 F.3d 1513, 1517 (10th Cir. 1994), cert. denied, 115 S.Ct. 1315 (1995). Once the motion has been properly supported, the burden shifts to the nonmovant to show, by tendering depositions, affidavits, and other competent evidence, that summary judgment is not proper. Concrete Works, 36 F.3d at 1518. All the evidence must be viewed in the light most favorable to the party opposing the motion. Simms v. Oklahoma ex rel. Department of Mental Health and Substance Abuse Services, 165 F.3d 1321, 1326 (10th Cir.), cert. denied, 120 S.Ct. 53 (1999).

III. ANALYSIS

On June 29, 2018, plaintiff Jodi Sheldon was seriously injured while participating in a high ropes course at the Golden Bell Ranch (“Golden Bell”). Ms. Sheldon sued Golden Bell under Colorado’s Premises Liability Act (“PLA”), §13-21-115, C.R.S. She also brought a claim of negligence against Cross Bearing Adventures (“CBA”), the company which constructed and inspected the course and trained Golden Bell employees on the safety and facilitation of various aspects of the course, and its owner, Kent McIlhany.2

All three defendants claim Ms. Sheldon’s claims are barred by a Waiver, Release and Indemnification Agreement (the “Waiver”) which she signed on May 18, 2018, prior to participating in the high ropes course. The Waiver provided, in relevant part,

I wish to participate in recreational activities to be made available to participants at Golden Bell Camp including activities that may be hazardous or otherwise involve a risk of physical injury or death to the participants (the”Activities”).

I expressly assume any and all risks of injury or death arising from or relating to the Activities including horseback riding, agricultural recreation and waive and release any and all actions, claims, suits or demands of any kind or nature whatsoever against Golden Bell Camp, its corporate affiliates, contractors, vendors, officer, agents, sponsors, volunteers or representatives of any kind (collectively “Releases”) arising from or relating in any way to my voluntary participation in these activities. I understand that this Waiver, Release and Indemnification agreement means, among other things, that if I am injured or die as a result of my participation in these activities, I and/or my family or heirs cannot under any circumstances sue Releases or any of them for damages relating to or caused by my injuries or death.

. . .

I agree to indemnify Releases or any of them and their subrogees, if any, in the event of any loss, damage or claim arising from or relating in any way to my participation in any of the Activities.

. . . .

I have read this Waiver, Release and Indemnification Agreement, have asked and received answers to any questions I had concerning its meaning and execute it freely, without duress, and in full complete understanding of its legal effect, and of the fact that it may affect my legal rights.

(CBA Motion App., Exh. C, Attachment 2.) Ms. Sheldon received the Waiver from her aunt3 after having been given a list of activities offered at Golden Bell and indicating her interest in participating in the high ropes course. (Id., Exh. C, Attachment 1 at 25-26.)

To begin, Ms. Sheldon does not oppose Mr. McIlhany’s motion to dismiss her claims against him personally. The uncontested evidence supports Mr. McIlhany’s assertion that all actions taken by him of which Ms. Sheldon complains were done in his capacity as a member, manager, and operator of CBA and that he never performed any services for Golden Bell in his individual capacity. Ms. Sheldon’s claims against Mr. McIlhany therefore will be dismissed with prejudice.

As for Ms. Sheldon’s claims against Golden Bell and CBA, they are precluded by the Waiver.4 Because this case implicates the court’s diversity jurisdiction, I apply Colorado law. Wade v. EMASCO Insurance Co., 483 F.3d 657, 665-66 (10th Cir. 2007). Exculpatory agreements “stand at the crossroads of two competing principles: freedom of contract and responsibility for damages caused by one’s own negligent acts,” Heil Valley Ranch, Inc. v. Simkin, 784 P.2d 781, 784 (Colo. 1989). Thus, although such agreements are generally disfavored, see B & B Livery, Inc. v. Riehl, 960 P.2d 134, 136 (Colo. 1998), and cannot “shield against a claim for willful and wanton conduct, regardless of the circumstances or intent of the parties,” Boles v. Sun Ergoline, Inc., 223 P.3d 724, 726 (Colo. 2010), “Colorado common law does not categorically prohibit the enforcement of contracts seeking to release claims of negligence,” Espinoza v. Arkansas Valley Adventures, LLC, 809 F.3d 1150, 1152 (10th Cir. 2016).

Colorado courts have identified four factors which inform the decision whether to enforce an exculpatory agreement: “(1) the existence of a duty to the public; (2) the nature of the service performed; (3) whether the contract was fairly entered into; and (4) whether the intention of the parties is expressed in clear and unambiguous language.” Brigance v. Vail Summit Resorts, Inc., 883 F.3d 1243, 1250 (10t Cir. 2018) (quoting Jones v. Dressel, 623 P.2d 370, 376 (Colo. 1981)) (internal quotation marks omitted).

The first two Jones factors focus on public policy questions – asking whether the party seeking exculpation is engaged in performing a service of great importance to the public, which is often a matter of practical necessity. Meanwhile, the latter two factors focus on more party – and contract-specific questions – asking whether the release was fairly obtained and clearly and unambiguously expressed.

Patterson v. Powder Monarch, LLC, 926 F.3d 633, 639 (10th Cir. 2019) (internal citations and quotation marks omitted). “[I]f an exculpatory agreement satisfies any of the four factors, it must be deemed unenforceable.” Brigance, 883 F.3d at 1250. The determination of this question is a matter of law for the court. Jones, 623 P.2d at 376. See also Johnson v. Gold’s Gym Rockies, LLC, 2019 WL 1112374 at *3 (D. Colo. March 11, 2019).

The first two factors are generally inapplicable to businesses engaged in recreational activities, Patterson, 926 F.3d at 639; Chadwick v. Colt Ross Outfitters, Inc., 100 P.3d 465, 467 (Colo. 2004), and the parties do not argue otherwise. See also Brigance, 883 F.3d at 1250-51, 1252-53 (citing cases). Nor is there any argument or evidence to establish that the third factor – whether the contract was fairly entered into – is applicable here. Indeed, because recreational activities are not considered either essential services or practically necessary, “a person is not ‘at the mercy’ of a business’s negligence when entering an exculpatory agreement involving recreational activities.” Brigance, 883 F.3d at 1253 (quoting Hamill v. Cheley Colorado Camps, Inc., 262 P.3d 945, 949-50 (Colo. App. 2011)).

Thus, whether the Waiver is enforceable turns exclusively on the fourth factor, “whether the intention of the parties is expressed in clear and unambiguous language.” Jones, 623 P.2d at 376. In analyzing this factor, the court focuses on whether the parties’ intent to “extinguish liability . . . was clearly and unambiguously expressed.” Heil Valley Ranch, 784 P.2d at 785.

To determine whether the intent of the parties is clearly and unambiguously expressed, [Colorado courts] have previously examined the actual language of the agreement for legal jargon, length and complication, and any likelihood of confusion or failure of a party to recognize the full extent of the release provisions. [They] have even taken into account an injured party’s subsequent acknowledgment that he understood the meaning of the provision.

Chadwick, 100 P.3d at 467 (internal citations omitted).

Ms. Sheldon insists the Waiver is ambiguous as to whether the high ropes course was within the scope of the activities covered. I am not persuaded. Here, the Waiver defined the term “Activities” as “recreational activities . . . including activities that may be hazardous or otherwise involve a risk of physical injury or death to participants.” (Emphasis added.) The use of the term “including” plainly signifies that some – but not all – of the Activities covered by the Waiver will be hazardous or involve a risk of physical injury. Thus, even accepting Ms. Sheldon’s suggestion that a high ropes course is not a hazardous activity,5 her argument fails.

Nor does the Waiver’s failure to refer specifically to the high ropes course render it ambiguous with respect to the type of activities covered.6 Colorado law does not require “an exculpatory agreement describe in detail each specific risk that the signor might encounter.” Squires v. Breckenridge Outdoor Education Center, 715 F.3d 867, 873 (10th Cir. 2013). Read in context, and considering not only its structure and language but also its purpose, the Waiver clearly and unambiguously applies to activities such as the high ropes course. See Patterson, 926 F.3d at 642. In this regard, Ms. Sheldon testified that prior to signing up for the high ropes course, she reviewed a list of activities offered by Golden Bell which, in addition to the high ropes course, also included “horseback riding,” an activity specifically referenced in and covered by the Waiver. (CBA Motion App., Exh. C, Attachment 1 at 25.) Moreover, nothing in the record suggests Ms. Sheldon would have been asked to sign a Waiver had she not requested to participate in the high ropes course. Given those circumstances, it “strains logic,” Squires, 715 F.3d at 874, to suggest Ms. Sheldon was confused or misled as to the fact that she was being asked to waive potential claims of negligence associated with the high ropes course. See also Hamill, 262 P.3d at 952 (exculpatory waiver enforceable against parent who signed on behalf of minor child where parent knew activities that were offered at camp; “An agreement with such plain and unambiguous terms will not fail because one of the parties, in hindsight, now claims to have misunderstood the scope of that agreement . . . based on ambiguities not readily apparent within the four corners of the agreement.”).7

Relatedly, the Waiver also clearly bars Ms. Sheldon’s claims against CBA. “A person not a party to an express contract may bring an action on such contract if the parties to the agreement intended to benefit the non-party, provided that the benefit claimed is a direct and not merely an incidental benefit of the contract.” E.B. Roberts Const. Co. v. Concrete Contractors, Inc., 704 P.2d 859, 865 (Colo. 1985). The Waiver specifically protects Golden Bell’s “contractors” and “vendors” from claims “arising from or relating in any way to [Ms. Sheldon’s] voluntary participation in these activities.” (CBA Motion App., Exh. C, Attachment 2.) Clearly, the Waiver was intended to cover parties like CBA in precisely the situation presented by this lawsuit. Moreover, the benefit thus conferred is directly related to its purpose – to absolve such parties from liability for claims of negligence.

Ms. Sheldon’s suggestion that the Wavier is ambiguous as to whether contractors and vendors are covered for all purposes or only when they are on site is meritless. The Waiver plainly is intended to have the broadest possible scope, applying to claims “arising from or relating in any way” to Ms. Sheldon’s participation in the covered activities. Clearly, the parties intended to absolve contractors from claims they were negligent in any way in relation to the subject activities, regardless whether that negligence happened on site at the time of the event. I thus find and conclude that the Waiver clearly and unambiguously bars Ms. Sheldon’s claims against CBA as well.

Ms. Sheldon’s remaining arguments attempting to avoid the effect of the Waiver are likewise unavailing. The Waiver does not fail for lack of consideration. Contrary to Ms. Sheldon’s arguments, the mere lapse of time between her payment to participate in the activity and the date the waiver was delivered to Golden Bell is not fatal to its enforcement. Instead, the pertinent question is whether the release of liability was a contract modification or rather is part of the same transaction and thus enforceable without additional consideration. See Patterson, 926 F.3d at 638 (“[E]ven aside from the question of timing, we are persuaded based on the nature and circumstances of the transaction that the payment and exculpatory agreement here . . . are better viewed as part of the same transaction, rather than as a subsequent contract modification.”) (citing Mincin, 308 F.3d at 1109).8

I am similarly unpersuaded by Ms. Sheldon’s suggestion that the Waiver fails due to either unilateral or mutual mistake. The doctrine of mutual mistake permits a party to rescind a contract “if all parties labored under the same erroneous conception of the contract’s terms and conditions.” In re Estate of Ramstetter, 411 P.3d 1043, 1051 (Colo. App. 2016) (citation and internal quotation marks omitted). Ms. Sheldon has failed to prove by clear and convincing evidence that such is the case here. Cabs, Inc. v. Hartford Insurance Group, 151 Fed. Appx. 604, 610 (10th Cir. Aug. 31, 2005); Maryland Casualty Co. v. Buckeye Gas Products Co., 797 P.2d 11, 13 (Colo. 1990).

For one thing, it is not clear that Ms. Sheldon’s asserted mistake – that Golden Bell’s high ropes course had been licensed by the state of Colorado – was sufficiently similar to Golden Bell’s mistake – that it did not require such a license – to warrant application of the doctrine at all.9 Assuming arguendo that it does, however, the doctrine of mutual mistake permits reformation of the contract “where both parties’ understanding of their agreement is contrary to the terms of a written instrument due to a drafting error[.]” Tatonka Capital Corp. v. Connelly, 390 F.Supp.3d 1289, 1294 (D. Colo. 2019), as modified on reconsideration, 2019 WL 5535226 (D. Colo. Oct. 25, 2019), appeal filed, 2019 WL 5535226 (10th Cir. Nov. 25, 2019) (No. 19-1450). See also Casey v. Colorado Higher Education Insurance Benefits Alliance Trust, 310 P.3d 196, 207 (Colo. App. 2012) (“A mutual mistake claim requires a showing that both parties were laboring under the same erroneous conception of the contract’s terms and conditions.”) See also Ranch O, LLC v. Colorado Cattlemen’s Agricultural Land Trust, 361 P.3d 1063, 1066-67 (Colo. App. 2015) (doctrine of mutual mistake applies only to mistakes going to a “basic assumption” underlying the contract).10

No term of the contract here addressed whether Golden Bell had, or was required to have, a state-issued license. Thus, any mistake as to that fact “did not create any ambiguity regarding the terms or substance of the [Waiver].” Shoels v. Klebold, 375 F.3d 1054, 1067 (10th Cir. 2004), cert. denied, 125 S.Ct. 1302 (2005). The Colorado Supreme Court long ago warned that courts “should not sanction, under the guise of reformation, the insertion in [contracts] of a new term or provision which was never even in the minds of the parties, let alone assented to by them.” Segelke v. Kilmer, 360 P.2d 423, 427 (Colo. 1961). “To order reformation under these circumstances is to rewrite, not to reform, the instruments.” Id. Just so here. I thus find the Waiver is not infirm based on mutual mistake.

I likewise reject Ms. Sheldon’s suggestion that she may avoid the waiver’s effect under the doctrine of unilateral mistake. “[A] unilateral mistake by one party to a contract can permit reformation if the evidence demonstrates that, at the time the contract was formed, the non-mistaken party was aware of the mistaken party’s mistake.” Tatonka Capital Corp., 390 F.Supp.3d at 1299. Thus, one party’s unilateral mistake may permit reformation where “the other engaged in fraud or inequitable conduct.” Poly Trucking, Inc. v. Concentra Health Service., Inc., 93 P.3d 561, 563 (Colo. App. 2004). See also RESTATEMENT (SECOND) OF CONTRACTS § 153 (contract may be avoided based on unilateral mistake where “(a) the effect of the mistake is such that enforcement of the contract would be unconscionable, or (b) the other party had reason to know of the mistake or his fault caused the mistake”); Shoels, 375 F.3d at 1068 (quoting Powder Horn Constructors, Inc. v. City of Florence, 754 P.2d 356, 364 (Colo.1988) (“[E]quity will not allow a party to knowingly take advantage of a mistake of another.”)).

None of these circumstances pertains here. It cannot be unconscionable to enforce an exculpatory contract which, like this one, is enforceable under Colorado law. Moreover, there is no hint in the record that Golden Bell knew or had reason to know that Ms. Sheldon did not know its high ropes course was not licensed by the state. Nor is there evidence to suggest Golden Bell was required to make its licensing status known to participants or that it purposefully hid its licensing status from Ms. Sheldon. At best, the evidence suggests Golden Bell’s website made it appear the camp’s activities were open to the general public, which if true would have rendered them subject to inspection and licensing by the state.11 Yet there is neither argument nor evidence that Ms. Sheldon even consulted, much less relied on, Golden Bell’s website in deciding to participate in the high ropes course or sign the Waiver.12 I thus find and conclude that the Waiver is not voidable based on unilateral mistake either.

IV. CONCLUSION

For these reasons, the named defendants are entitled to summary judgment, and Ms. Sheldon’s remaining claims against them will be dismissed with prejudice. Although the caption of this case named a number of unknown John Doe defendant corporations who may have had “ownership and control of the subject obstacle activity (Complaint ¶ 10 at 3 [#1], filed May 13, 2019), with discovery now closed, Ms. Sheldon has not identified any such entities. These defendants therefore also should be dismissed, albeit without prejudice.13
See Culp v. Williams, 2011 WL 1597686 at *3 (D. Colo. April 27, 2011) (because Doe designation is not permitted where “plaintiff’s ignorance of the defendant’s true identity is the result of willful ignorance or lack of reasonable inquiry,” Doe defendants dismissed where case had been pending for more than a year and plaintiff failed to show “good reason as to why [it] ha[d] been unable to obtain the true identity of these unnamed Defendants”).

V. ORDERS

THEREFORE, IT IS ORDERED as follows:

1. That the Motion for Summary Judgment on Plaintiff’s Personal Injury Claims Against Golden Bell Retreat d/b/a The Colorado District Church of the Nazarene d/b/a Golden Bell Ranch and Golden Bell Camp and Conference Center [#42], filed January 21, 2020, is granted;

2. That Defendants Cross Bearing Adventures, LLC’s and Kent Fielden McIlhany’s Motion for Summary Judgment [#55], filed March 9, 2020, is granted;

3. That plaintiff’s remaining claims against defendants are dismissed as follows:

a. That the remaining claims of plaintiff against defendants, Golden Bell Retreat d/b/a The Colorado District Church of the Nazarene d/b/a Golden Bell Ranch and Golden Bell Camp and Conference Center; Cross Bearing Adventures, LLC; Kent Fielden McIlhany, an individual, are dismissed with prejudice; and

b. That the remaining claims of plaintiff against defendants, John Doe Corporations 1 through 10 are dismissed without prejudice;

4. That judgment shall enter as follows:

a. That judgment with prejudice shall enter on behalf of defendants, Golden Bell Retreat d/b/a The Colorado District Church of the Nazarene d/b/a Golden Bell Ranch and Golden Bell Camp and Conference Center; Cross Bearing Adventures, LLC; and Kent Fielden McIlhany, an individual, and against plaintiff, Jodi Sheldon, as to all remaining claims for relief and causes of action asserted herein;

b. That judgment without prejudice shall enter on behalf of defendants, John Doe Corporations 1 through 10, and against plaintiff, Jodi Sheldon, as to all remaining claims for relief and causes of action asserted herein;

5. That judgment shall enter further in accordance with my Order Adopting Recommendation of United States Magistrate Judge [#35], filed January 8, 2020;

6. That the combined Final Pretrial Conference and Trial Preparation Conference scheduled for June 11, 2020, at 10:00 a.m., is vacated;

7. That the trial scheduled to commence on June 29, 2020, is vacated;

8. That defendants are awarded their costs, to be taxed by the clerk in the time and manner required by Fed. R. Civ. P. 54(d)(1) and D.C.COLO.LCivR 54.1; and

9. That this case is closed.

Dated April 20, 2020, at Denver, Colorado.

BY THE COURT:

/s/_________
Robert E. Blackburn
United States District Judge

——–

Footnotes:

1. “[#42]” is an example of the convention I use to identify the docket number assigned to a specific paper by the court’s case management and electronic case filing system (CM/ECF). I use this convention throughout this order.

2. Ms. Sheldon’s claims of negligence and fraudulent concealment against Golden Bell were dismissed previously as preempted by the PLA. (See Order Adopting Recommendation of the United States Magistrate Judge [#35], filed January 8, 2020.)

3. Ms. Sheldon, who is a resident of Illinois, attended Golden Bell as part of a large family reunion.

4. I reject Ms. Sheldon’s suggestion that I should defer ruling on this motion until after Golden Bell’s Rule 30(b)(6) deposition is completed. Pursuant to Rule 56(d), to warrant such action, Ms. Sheldon must “show[] by affidavit or declaration that, for specified reasons, [she] cannot present facts essential to justify [her] opposition.” FED. R. CIV. P. 56(d). No such affidavit or declaration has been submitted in support of Ms. Sheldon’s request. The request also violates D.C.COLO.LCivR 7.1(d), which provides that “[a] motion shall not be included in a response or reply to the original motion. A motion shall be filed as a separate document.” I therefore deny this request and consider the summary judgment motions as submitted.

5. Frankly, however, this argument strains credulity. I would be hard pressed to find that it is not inherently risky to be suspended many feet above the ground, regardless of safety measures taken to mitigate the risk. Moreover, Ms. Sheldon’s subjective belief that the ropes course was not inherently dangerous is irrelevant. See Brooks v. Timberline Tours, Inc., 127 F.3d 1273, 1275 n.1 (10t Cir. 1997) (“Plaintiffs’ subjective intent is inadmissible to overcome the parties overt manifestation of intent in the releases because the language in these agreements is clear and unambiguous.”) (citation and internal quotation marks omitted).

6. Ms. Sheldon’s reliance on the district court’s decision in Schlumbrecht-Muniz v. Steamboat Ski & Resort Corp., 132 F.Supp.3d 1310 (D. Colo. 2015), is misplaced. There, although the agreement at issue clearly and unambiguously released the defendant from claims related to the plaintiff’s participation in “the Event” (a ski race), it was not clear that it covered injuries the plaintiff sustained after she finished competing in that event. See id. at 1315. There is no such ambiguity here. Ms. Sheldon was injured while participating in the “activities” which were the subject of the Waiver.

7. I further reject Ms. Sheldon’s argument that her claim of gross negligence against Golden Bell cannot be waived. Assuming such is the case as a matter of law, as a matter of fact, Ms. Sheldon failed to plead such a claim.

8. In reaching its determination, the Mincin court relied on two state court decisions which reached similar conclusions. See Mincin, 308 F.3d at 1109 (citing Beehner v. Cragun Corp., 636 N.W.2d 821, 829 (Minn. Ct. App.2001) (“This court has held that an exculpatory agreement signed after a fee to participate in a recreational activity has been paid is part of the same transaction and is therefore enforceable without additional consideration other than permission to participate in the activity.”), and Hewitt v. Miller, 521 P.2d 244, 248 n.3 (Wash. App. 1974) (concluding that release signed by scuba diving student after payment of fee was an integrated part of the whole transaction and was thus supported by original consideration)).

9. At the time Ms. Sheldon participated in the high ropes course, the course was not licensed by the Colorado Division of Oil and Public Safety (“OPS”) because Golden Bell believed itself subject to a “private event” exception, as its activities were available only to persons staying at the camp or its associated RV park and not open to the general public. However, because Golden Bell charged a separate fee for participation in activities at the camp to groups making use of the RV park, OPS found Golden Bell was not entitled to the benefit of this exclusion. Golden Bell resolved the violation by changing the way in which it offers its activities to guests of the RV park. OPS waived the fine assessed and considered the matter resolved as of August 23, 2019. (See Pl. Resp. App. [#52], Exh. J, Golden Bell Motion App., Exhs. A & B.)

10. Even where the doctrine of mutual mistake is otherwise applicable, however, a party is not entitled to reformation where she was “‘aware, at the time the contract is made, that [she] ha[d] only limited knowledge with respect to the facts to which the mistake relates but treat[ed] [her] limited knowledge as sufficient.'” In re Estate of Ramstetter, 411 P.3d 1043, 1051 (Colo. App. 2016) (quoting RESTATEMENT (SECOND) OF CONTRACTS § 154(b)). Such is arguably the case here as well.

11.
See supra, note 6.

12. These same reasons preclude Ms. Sheldon’s belated assertion that Golden Bell engaged in fraud which would invalidate the Waiver. Otherwise, this argument is so woefully undeveloped and unsupported by citation to any legal authority that I decline to consider it. See Bird v. Regents of New Mexico State University, 619 Fed. Appx. 733, 766 (10th Cir. Aug. 6, 2015) (arguments which re “conclusory, unsupported, and undeveloped” “are insufficient to overcome summary judgment “); Center for Biological Diversity v. Pizarchik, 858 F.Supp.2d 1221, 1230 n.11 (D. Colo. 2012) (court does not consider “cursory, unsupported, or otherwise inadequately briefed arguments”). To the extent Ms. Sheldon believed she required further discovery to make this argument, she has forfeited any such argument. See supra, note 4.

13. Without knowledge as to how any such corporations may be related to or associated with Golden Bell, it is impossible to say whether they would be covered by the Waiver and thus entitled to dismissal with prejudice. Cf. Roper v. Grayson, 81 F.3d 124, 126 (10th Cir. 1996); Bustamante v. Board of County Commissioners of San Miguel County, 2009 WL 10706928 at *5 n.7 (D.N.M. Oct. 2, 2009).

——–


Minnesota Appellate court upholds a release signed by a mother for a child’s injuries

Court also upheld the settlement agreement signed by the parents was valid to prohibit a claim by the minor after turning age 18

Justice v. Marvel, LLC, 965 N.W.2d 335 (Minn. App. 2021)

State:
Minnesota, Court of Appeals of Minnesota

Plaintiff: Carter Justice

Defendant: Marvel, LLC d/b/a Pump It Up Parties

Plaintiff Claims: negligently failed to cover the landing surface of the fall zone surrounding the inflatable

Defendant Defenses: Settlement and Release

Holding: For the Defendant

Year: 2021

Summary

The plaintiff was injured as a minor at an indoor recreation facility. The parents settled with the facility at the time of the injury. When the minor reached the age of majority in Minnesota he sued the facility. The Appellate court upheld the release signed by the parent to stop the minors claims and the settlement agreement.

Facts

In February 2007, Justice attended a friend’s birthday party at an indoor amusement facility in the city of Plymouth. The facility, known as Pump It Up, was owned and operated by Marvel, L.L.C. Upon entering the facility, Justice’s mother, Michelle Sutton, was asked to sign, and did sign, a form agreement….

During the party, while playing on an inflatable obstacle course, Justice fell approximately six feet and hit his head on the carpeted floor. He was taken to a hospital, where he received treatment.

In September 2007, Sutton and her husband, Steve Sutton, who is Justice’s step-father, entered into a written agreement with Marvel. The one-page agreement states that the Suttons had incurred unreimbursed medical expenses as a result of Justice’s head injury and that Marvel agreed to pay $1,500 of those expenses. The agreement provided that, if no new medical complications arose within six months, the Suttons would “execute a full and complete release and discharge of any and all claims” against Marvel. The Suttons did not thereafter execute such a release.

In June 2018, after Justice had turned 18 years old, he commenced this action against Marvel.

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

This is the first case I’ve found in the recreation community where a minor sued upon reaching the age of majority for an injury the minor received years before. Injured minors are the lawsuits that seem to hang on forever. In some cases, you want the parents to present a claim so you can deal with it and not possible wait tent to fifteen years for the minor to turn 18 (or 19 or 21 dependent on the state See The age that minors become adults.) to sue on their own.

The defendant had two defenses. 1. The release that the mother had signed for her son at the time of the injury (pre-injury release). 2. The release the mother and father had signed at the time of the injury to settle the claim (post injury release).

The court looked at the basic issues surrounding a parents’ right to raise a child and whether this right includes the right to sign away a minor’s right to sue.

His first argument for voiding the release is also unique. After his mother signed the release, Minnesota passed a statute to regulate amusement parks like this and in the process lost the right to have a parent sign away a minor’s right to sue.

Nonetheless, the existence of a parent’s fundamental right “to make decisions concerning the care, custody, and control of his or her children,” implies that a parent has authority to act on behalf of a minor child when interacting with third parties. The United States Supreme Court has recognized as much: “Most children, even in adolescence, simply are not able to make sound judgments concerning many decisions, including their need for medical care or treatment. Parents can and must make those judgments. This principle is based on “a presumption that parents possess what a child lacks in maturity, experience, and capacity for judgment required for making life’s difficult decisions.” Furthermore, the law recognizes that “natural bonds of affection lead parents to act in the best interests of their children. The Supreme Court stated in Parham that a parent’s authority to make health-care decisions on behalf of a minor child is limited only in atypical situations, such as if the parent has neglected or abused the child.

(This has been adopted by all states, yet most State Supreme Courts do not believe that a parent has the right to sign away a child’s right to sue. They can provide medical care to the child that might kill them, but they can’t allow them to be injured.)

The court then reviewed all the ways that the state of Minnesota has by statute given parents the right to control the child upbringing. The court then made this statement supporting the right of a parent to sign away the right to sue.

In light of these statutes, and in the absence of any law that either forbids parents from entering into contracts on behalf of their minor children or limits their ability to do so, it is clear that a parent generally has authority, on behalf of a minor child, to enter into an agreement that includes an exculpatory clause.

The next issue was a statute posted after the release was signed would void the release.

Three years after the plaintiff’s mother signed the release, Minnesota enacted Minn. Stat. 184B.20 Inflatable Amusement Equipment. The statute had a specific provision which voided releases signed by a parent for a minor.

Subd. 5. Insurance required; waiver of liability limited.

(b) A waiver of liability signed by or on behalf of a minor for injuries arising out of the negligence of the owner or the owner’s employee or designee is void.

The plaintiff argued that this statute should be used to void a release. However, a basic tenet of the law is “No law shall be construed to be retroactive unless clearly and manifestly so intended by the legislature.” Even if the legislature intends for a law to retroactive it is very rarely upheld as valid. No business could continue if at any time in the future the law could change making the action or business illegal.

The plaintiff then argued the release was void because it was “overly broad and contrary to public policy.” Minnesota law follows the law in most other states on interpreting an overly broad release and public policy issues.

“A clause exonerating a party from liability will be strictly construed against the benefited party.” “If the clause is either ambiguous in scope or purports to release the benefited party from liability for intentional, willful or wanton acts, it will not be enforced.” Id. In addition, an exculpatory clause is unenforceable if it “contravenes public policy.”

Minnesota has a two prongs test to determine if a contract violates public policy.

The test focuses on two factors: “(1) whether there was a disparity of bargaining power between the parties (in terms of a compulsion to sign a contract containing an unacceptable provision and the lack of ability to negotiate elimination of the unacceptable provision)” and “(2) the types of services being offered or provided (taking into consideration whether it is a public or essential service).”

The plaintiff argued the release was a violation of public policy because his mother could not negotiate the release and as such he would not have been permitted to attend the birthday party if she had not signed the release. This argument might work for a real necessity, however in recreation cases it fails because the services can always be obtained elsewhere.

Justice contends that there was a disparity in bargaining power because there was no opportunity for his mother to negotiate the terms of the exculpatory clause and because he would not have been permitted to attend the birthday party if his mother had not signed the form agreement. Justice’s contention is not legally viable. “Even though a contract is on a printed form and offered on a ‘take it or leave it’ basis, those facts alone do not cause it to be an adhesion contract.” More is required. The agreement must relate to a “necessary service,” and there also “must be a showing … that the services could not be obtained elsewhere.”

But the supreme court has recognized that “contracts relating to recreational activities do not fall within any of the categories where the public interest is involved,” on the ground that they are not “services of great importance to the public, which were a practical necessity for some members of the public.”

The release was found to not violate public policy because:

…exculpatory clause is not contrary to public policy because there was no bargaining-power disparity and because Marvel did not provide “an essential or public service.”

The next argument was the scope of the release was too broad because the language tries to stop claims for “intentional, willful or wanton acts.” However, the release itself only referred to claims for negligence. However, this was not enough of a restriction under Minnesota law the court concluded.

Marvel’s exculpatory clause does not make any reference to claims of “ordinary negligence” or simply “negligence.” Rather, it expansively refers to “any and all claims,” which means that it purports to release Marvel from claims arising from its intentional, willful or wanton acts. Thus, Marvel’s exculpatory clause is overly broad.

The court concluded the language of the release was overly broad when it did language in the release purported to release the defendant from more than simple negligence claims. The court then examined whether this issue was enough to void the release.

The court in a prior decision, repeated here found that although the language of the release may purport to cover greater than ordinary negligence, a release under Minnesota law could only release from ordinary negligence. So, no matter what the release said or was interpreted to say, it could not protect from simple negligence claims.

We reasoned that “any term in a contract which attempts to exempt a party from liability for gross negligence or wanton conduct is unenforceable, not the entire contract. ” (emphasis added) (quotation and alteration omitted). In light of Anderson, Marvel’s exculpatory clause is enforceable to the extent that Justice asserts a claim of ordinary negligence, but it is unenforceable to the extent that Justice asserts a claim of greater-than-ordinary negligence.

Overly broad language, concerning the extent of the protection provided by the release, did not void the release.

Finally, the court reviewed the plaintiff’s argument that the post injury release signed by the plaintiff’s parents to settle their claims at the time of the injury was not valid. The plaintiff argued legal technical claims about the signing and validity of the release, which the court rejected.

The district court did not err by granting Marvel’s motion for summary judgment on the ground that Justice’s sole claim of ordinary negligence is barred by the exculpatory clause that his mother signed on his behalf. In light of that conclusion, Justice’s argument that the district court erred by denying his motion to amend the complaint to add a request for punitive damages is moot.

So Now What?

One of the confusing points of this case is why did the amusement industry allow Minn. Stat. 184B.20 Inflatable Amusement Equipment to be passed. It provided no protection for the industry or operators, placed a mandatory insurance requirement and worst voided the use of a release for a minor in one of the few states where a minor can have a parent sign away their rights.

The two other issues, the signing of a release by a parent to stop the claims of a child, which is not moot for inflatable amusement devices, and the concept of a minor suing after his parents have settled a claim, after reaching the age of majority are rare and decided by the court in a manner that upholds the validity of a contract.

If settlement and post injury release signed by the parents had been thrown out, this would create a nightmare of litigation. No one would settle any claim of a minor until the minor reached the age of majority since any settlement might be void. No matter how badly a parent might want to pay medical bills or move on, no insurance company would offer a payment knowing they could be sued later.

What do you think? Leave a comment.

Who am I

Jim Moss

I’m an attorney specializing in the legal issues of the Outdoor Recreation Industry

I represent Manufactures, Outfitters, Guides, Reps, College & University’s, Camps, Youth Programs, Adventure Programs and Businesses

CV

Copyright 2022 Recreation Law (720) 334 8529

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

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

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A Parent cannot sign away a minor’s right to sue in New Jersey, however, a parent can agree to arbitrate the minor’s claims.

Another trampoline park case where the plaintiffs are required to arbitrate their claim even though the release which included the arbitration clause was not enforceable in New Jersey.

Johnson v. Sky Zone Indoor Trampoline Park in Springfield (N.J. Super. App. Div. 2021)

State: New Jersey

Plaintiff: David Johnson, an infant by his guardian ad litem, Shalonda Johnson, and Shalonda Johnson, individually

Defendant: Sky Zone Indoor Trampoline Park in Springfield, Sky Zone, LLC, Sky Zone Franchise Group, LLC, and Go Ahead and Jump 4, LLC

Plaintiff Claims: negligence

Defendant Defenses: release required arbitration of the claims

Holding: For the defendants, claims must be arbitrated

Year: 2021

Summary

The New Jersey Supreme Court held Hojnowski v. Vans Skate Park, 187 N.J. 323 (2006), that a parent could not sign away a minor’s right to sue. See However, in Hojnowski the court stated a parent could agree to arbitrate a minor’s claims. This decision of the injuries received at a trampoline park held the same decision. When signing the release, the mother agreed to arbitration of any claims.

Facts

On July 14, 2018, ten-year-old David and his mother visited the Park. Before they were permitted entry, however, a Park employee apprised Johnson she was required to sign a “Participation Agreement, Release and Assumption of Risk” (the Agreement) on an electronic tablet. On August 15, 2018, plaintiffs again visited the Park and, while jumping on a trampoline, David seriously injured his leg. The appellate record did not include evidence of whether Johnson executed a second waiver.

The Agreement is presented to the patrons at a kiosk in the form of an electronic document. The patrons are expected to read it and acknowledge their consent to be bound by the terms contained therein by placing an electronic “checkmark” and entering certain personally identifying information. Defendants argue David’s mother placed an electronic checkmark where indicated, and thus acknowledged she understood and agreed “to arbitrate any dispute as set forth in this section” and waived “[her] right, and the right(s) of [her] minor child(ren) . . . to maintain a lawsuit against [defendants] . . . for any and all claims covered by this Agreement.”

The mother filed a lawsuit for herself and her son. The defendant argued the arbitration clause in the release should apply. That would remove the litigation from the state court system and have a neutral arbitrator decide the case. Normally arbitrators do not hand out damages to the extend a jury would. The court agreed, leading to this appeal.

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

The argument was quite simple. The plaintiff argued that since the New Jersey Supreme Court had decided that a parent could not sign away a minor’s right to sue, that the release, including the arbitration clause should be thrown out.

The plaintiff first argued there was no real notice because the plaintiff had checked a box on the electronic form and that was not enough notice required to alert the plaintiff that she was going to have to arbitrate any claim. The defense countered that the plaintiff has completed the form giving the defendant a lot of contact information.

In response, defense counsel argued Johnson did a great deal more than merely place a checkmark on a section of an electronic document. “We don’t just have the electronic signatures. We have her name, her address, her phone number, her date of birth . . . it’s not merely that you have [Janay’s] certification.

The plaintiff then argued the arbitration clause was ambiguous and unenforceable as a matter of law.

As a matter of public policy, our Supreme Court has upheld arbitration as a “favored means of dispute resolution.” Hojnowski, 187 N.J. at 342. The Court has consistently endorsed a “strong preference to enforce arbitration agreements, both at the state and federal level.” In determining whether a valid agreement to arbitrate exists, we will apply “state contract-law principles.” Hojnowski, 187 N.J. at 342. Guided by these principles, “[a]n arbitration agreement is valid only if the parties intended to arbitrate because parties are not required ‘to arbitrate when they have not agreed to do so.

The statement that the arbitration clause is only valid if the parties intended to arbitrate is good for arbitration clauses and contracts. The court also found the language requiring arbitration was not ambiguous or unenforceable.

Mutuality of assent is the hallmark of an enforceable contract. Thus, the initial inquiry is whether the parties actually and knowingly agreed to arbitrate their dispute. To reflect mutual assent to arbitrate, the terms of an arbitration provision must be “sufficiently clear to place a consumer on notice that he or she is waiving a constitutional or statutory right . . . .” “No particular form of words is necessary to accomplish a clear and unambiguous waiver of rights.” If, “at least in some general and sufficiently broad way,” the language of the clause conveys arbitration is a waiver of the right to bring suit in a judicial forum, the clause will be enforced.

The court went further to state:

The language in the arbitration clause states plaintiffs were “agreeing to arbitrate any dispute as set forth in this section” and were “waiving [their] right . . . to maintain a lawsuit.” It sets forth, “[b]y agreeing to arbitrate, [plaintiffs] understand that [they] will NOT have the right to have [their] claim[s] determined by a jury.” This language clearly and unambiguously puts plaintiffs on notice that they are waiving the right to a jury trial and the right to pursue their claims in a court of law. This part of the Agreement is therefore enforceable.

The plaintiff then argued that forcing her to sign an exculpatory contract of adhesion right before a birthday party was a violation of the doctrines of procedural and substantive unconscionability.

We next address plaintiffs’ arguments attacking the enforcement of the arbitration clause based on the doctrines of procedural and substantive unconscionability. In essence, plaintiffs argue requiring Johnson to read and sign an ambiguous contract of adhesion immediately before a birthday party left her with no other choice but to assent.

In New Jersey there is a four-part test to determine if an agreement is a contract of adhesion.

[I]n determining whether to enforce the terms of a contract of adhesion, [a court] look[s] not only to the take-it-or-leave-it nature or the standardized form of the document but also to [(1)] the subject matter of the contract, [(2)] the parties’ relative bargaining positions, [(3)] the degree of economic compulsion motivating the “adhering” party, and [(4)] the public interests affected by the contract.

The court’s response was they could not find anything in the agreement that rose to the level that the contract was a contract of adhesion under New Jersey law.

Although the case is not over, any damages will probably significantly reduce by requiring arbitration.

So Now What?

This is the second decision that is almost identical to this one. Can a release in New Jersey at a trampoline park require the parent to arbitrate the minor’s claim. See New Jersey does not allow a parent to sign away a minor’s right to sue so a binding arbitration agreement is a good idea, if it is written correctly. This decision does not mention the decision is Weed v. Sky NJ, LLC., 2018 N.J. Super. Unpub. LEXIS 410, 2018 WL 1004206 which is almost identical in the facts.

There are two ways to limit damages in a state that does not allow a parent to sign a release giving up a minor’s right to sue. Assumption of the risk agreements and the defense of assumption of the risk. Did the parent AND the minor knowingly and voluntarily enter into the risk that caused the injury. This is only valid if you can prove the minor knew or you provided the minor with the education or knowledge to knowingly and voluntarily assume the risk. Voluntary is the easy part proving the minor knew of the risk is difficult.

Arbitration then is the next defense in this ladder to reduce damages. Most states do not allow an arbitrator to award more than the basic damages. Punitive damages cannot be awarded by arbitrators. Also, arbitrators are not over come by emotion or other factors that would influence them into awarding large damages.

Before putting an arbitration clause in your agreement, you need to determine two things.

  1. Is arbitration better than the court system in your state. If your state supports the use of a release, a release gets you out of a case without any damages. Even though arbitration will generally not give the plaintiff large awards, they usually award something.
  2. Are there benefits to arbitration in your state that outweigh other means of resolving the dispute.

In those states that do not support a parent signing away a minor’s right to sue, arbitration is probably a good result. See States that allow a parent to sign away a minor’s right to sue.

What do you think? Leave a comment.

Who am I

Jim Moss

I’m an attorney specializing in the legal issues of the Outdoor Recreation Industry

I represent Manufactures, Outfitters, Guides, Reps, College & University’s, Camps, Youth Programs, Adventure Programs and Businesses

CV

Copyright 2022 Recreation Law (720) 334 8529

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

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

Author: Outdoor Recreation Insurance, Risk Management and Law

To Purchase Go Here:

Facebook Page: Outdoor Recreation & Adventure Travel Law

Email: Jim@Rec-Law.US

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, #RecreationLaw, #OutdoorLaw, #OutdoorRecreationLaw, #SkiLaw,


Johnson v. Sky Zone Indoor Trampoline Park in Springfield (N.J. Super. App. Div. 2021)

Johnson v. Sky Zone Indoor Trampoline Park in Springfield (N.J. Super. App. Div. 2021)

DAVID JOHNSON, an infant by his guardian ad litem, SHALONDA JOHNSON, and SHALONDA JOHNSON, individually, Plaintiffs-Appellants,
v.
SKY ZONE INDOOR TRAMPOLINE PARK IN SPRINGFIELD, SKY ZONE, LLC, SKY ZONE FRANCHISE GROUP, LLC, and GO AHEAD AND JUMP 4, LLC, Defendants-Respondents.

No. A-2489-20

Superior Court of New Jersey, Appellate Division

December 6, 2021

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued November 10, 2021

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-5446-20.

Edward M. Colligan argued the cause for appellants (Colligan & Colligan attorneys; Edward M. Colligan, on the brief).

Kelly A. Waters argued the cause for respondents (Wood Smith Henning & Berman, attorneys; Kelly A. Waters, of counsel and on the brief; Jill A. Mucerino and Sean P. Shoolbraid, on the brief).

Before Judges Fuentes, Gilson, and Gooden Brown.

PER CURIAM

David Johnson, a child under the age of eighteen, was injured while visiting a trampoline park owned and operated by Sky Zone, LLC, Sky Zone Franchise Group, LLC and Go Ahead and Jump 4, LLC (collectively, Park or defendants). Shalonda Johnson, individually and as guardian ad litem of her minor son (collectively, plaintiffs), [1] filed a civil action against defendants in the Superior Court, Law Division, in Union County, seeking compensatory damages. In lieu of filing a responsive pleading, defendants moved before the Law Division to enforce an arbitration clause contained in an electronic document Johnson signed as a condition of being permitted to enter the Park. After considering the arguments of counsel and the exhibits submitted, the Law Division judge assigned to the case granted defendants’ motion to enforce the arbitration clause and dismissed the case with prejudice in an order entered on March 24, 2021.

In this appeal, plaintiffs argue the arbitration clause contained in this electronic general liability release contract is unenforceable. After reviewing the record presented to the Law Division judge, we affirm the part of the order enforcing the arbitration clause, vacate the dismissal of plaintiffs’ complaint with prejudice, and remand for the court to stay judicial proceedings related to this case pending the outcome of the arbitration.[2]

I.

A.

On July 14, 2018, ten-year-old David and his mother visited the Park. Before they were permitted entry, however, a Park employee apprised Johnson she was required to sign a “Participation Agreement, Release and Assumption of Risk” (the Agreement) on an electronic tablet. On August 15, 2018, plaintiffs again visited the Park and, while jumping on a trampoline, David seriously injured his leg.[3] The appellate record did not include evidence of whether Johnson executed a second waiver.

The Agreement contains a general release provision “intended to release and provide other benefits, legal protections and consideration” to defendants. For example, it contains an “acknowledgement of potential injuries” provision, which places patrons on notice that “participating in trampoline and other activities is inherently and obviously dangerous.” The Agreement also includes a “voluntary assumption of risk acknowledgment” provision, which informs patrons that they “are participating voluntarily at [their] own risk” and could suffer “significant bodily injuries” or “die or become paralyzed, partially or fully, through their use of the Sky Zone facility and participation in Sky Zone activities.”

Finally, the Agreement contains a “release of liability” section, which requires patrons to “forever, irrevocably and unconditionally release, waive, relinquish, discharge from liability and covenant not to sue [Sky Zone]” for

any and all claims . . . of whatever kind or nature, in law, equity or otherwise, . . . related to or arising, directly or indirectly, from [their] access to and/or use of the Sky Zone [f]acility, . . . including, without limitation, any claim for negligence, failure to warn or other omission, . . . personal injury, . . . [or] bodily harm . . . .

The enforceability of these exculpatory provisions are not part of this appeal. We express no opinion as to whether these exculpatory provisions are enforceable under our State’s common law, as expressed by our Supreme Court in Stelluti v. Casapenn Enters., LLC, 203 N.J. 286 (2010), and Hojnowski v. Vans Skate Park, 187 N.J. 323 (2006).

The dispositive issue in this appeal concerns the enforceability of the section in the Agreement entitled, in part, “arbitration of disputes.” The Agreement is presented to the patrons at a kiosk in the form of an electronic document. The patrons are expected to read it and acknowledge their consent to be bound by the terms contained therein by placing an electronic “checkmark” and entering certain personally identifying information. Defendants argue David’s mother placed an electronic checkmark where indicated, and thus acknowledged she understood and agreed “to arbitrate any dispute as set forth in this section” and waived “[her] right, and the right(s) of [her] minor child(ren) . . . to maintain a lawsuit against [defendants] . . . for any and all claims covered by this Agreement.” This section also provides the following recitation of the rights plaintiffs agreed to waive as a precondition to enter the Park and participate in the activities available therein:

By agreeing to arbitrate, I understand that I will NOT have the right to have my claim determined by a jury, and the minor child(ren) above will NOT have the right to have claim(s) determined by a jury. Reciprocally, [the Sky Zone defendants] waive their right to maintain a lawsuit against [plaintiff] . . . for any and all claims covered by this [a]greement, and they will not have the right to have their claim(s) determined by a jury. ANY DISPUTE, CLAIM OR CONTROVERSY ARISING OUT OF OR RELATING TO MY OR THE CHILD’S ACCESS TO AND/OR USE OF THE SKY ZONE PREMISES AND/OR ITS EQUIPMENT, INCLUDING THE DETERMINATION OF THE SCOPE OR APPLICABILITY OF THIS AGREEMENT TO ARBITRATE, SHALL BE BROUGHT WITHIN ONE YEAR OF ITS ACCRUAL (i.e., the date of the alleged injury) FOR AN ADULT AND WITHIN THE APPLICABLE STATUTE OF LIMITATIONS FOR A MINOR AND BE DETERMINED BY ARBITRATION IN THE COUNTY OF THE SKY ZONE FACILITY . . . BEFORE ONE ARBITRATOR. THE ARBITRATION SHALL BE ADMINISTERED BY [JUDICIAL ARBITRATION AND MEDIATION SERVICES (JAMS)] PURSUANT TO ITS RULE 16.1 EXPEDITED ARBITRATION RULES AND PROCEDURES. JUDGMENT ON THE AWARD MAY BE ENTERED IN ANY COURT HAVING JURISDICTION. THIS CLAUSE SHALL NOT PRECLUDE PARTIES FROM SEEKING PROVISIONAL REMEDIES IN AID OF ARBITRATION FROM A COURT OF APPROPRIATE JURISDICTION. This [a]greement shall be governed by, construed and interpreted in accordance with the laws of the State of New Jersey, without regard to choice of law principles. Notwithstanding the provision with respect to the applicable substantive law, any arbitration conducted pursuant to the terms of this [a]greement shall be governed by the Federal Arbitration Act (9 U.S.C., Sec. 1-16). I understand and acknowledge that the JAMS Arbitration Rules to which I agree are available online for my review at jamsadr.com, and include JAMS Comprehensive Arbitration Rules & Procedures; Rule 16.1 Expedited Procedures; and, Policy On Consumer Minimum Standards Of Procedural Fairness.

[(Emphasis in original).]

The Agreement also contained a merger and a severability clause, in which Johnson acknowledged: “I have had sufficient opportunity to read this entire document. I have read and understood and voluntarily agree to be bound by its terms.” The clause further provided:

This [a]greement constitutes and contains the entire agreement between [Sky Zone] and [plaintiffs] relating to the . . . use of the Sky Zone Facility. There are no other agreements, oral, written, or implied, with respect to such matters. . . . If any term or provision of this [agreement] shall be held illegal, unenforceable, or in conflict with any law governing this [agreement] the validity of the remaining portions shall not be affected thereby. B.

Plaintiffs filed their personal injury complaint against defendants on August 13, 2020. The Law Division entered default against defendants on December 28, 2020, for failure to file a timely responsive pleading. On January 8, 2021, defendants’ counsel notified plaintiffs’ counsel he intended to file a motion to dismiss the complaint in lieu of an answer pursuant to Rule 4:6-2(e), based on plaintiffs’ failure to state a claim upon which relief may be granted. The attorneys thereafter entered into a Consent Agreement, stating in relevant part:

This matter having come before the [c]ourt upon the Consent of the parties, whereby the parties consent, stipulate, and agree that the default entered against Defendants, SKY ZONE FRANCHISE GROUP, LLC and GO AHEAD AND JUMP 4, LLC, be vacated and the time for Defendant to Answer or Otherwise Plead be extended until January 30, 2021 . . . .

[(Strikethrough in original).]

Plaintiff’s counsel unilaterally struck “or Otherwise Plead” from the Consent Order. On February 2, 2021, the Law Division accepted the Consent Agreement and vacated the default. Defendants moved to dismiss the complaint and compel arbitration on January 30, 2021. Defendants’ motion came for oral argument before the Law Division on March 24, 2021. Plaintiffs’ counsel argued the arbitration clause presented to Johnson was unenforceable based on both the obscure, technical language used in the document, and by presenting it as part of an electronic document in a kiosk located outside the Park’s entrance. Plaintiff’s counsel also emphasized the circumstances under which Johnson allegedly waived her son’s constitutional right to a jury trial: “[M]y client went in July [2018] to be a guest at a birthday party. The . . . defense . . . alleges that she signed this Agreement at that time and at that time, they’re saying that she signed an agreement that was good forever.”

In response, defense counsel argued Johnson did a great deal more than merely place a checkmark on a section of an electronic document. “We don’t just have the electronic signatures. We have her name, her address, her phone number, her date of birth . . . it’s not merely that you have [Janay’s] certification. You have identifiers that Skyzone would not have gotten without the plaintiff.” The reference made by defense counsel to “Janay’s certification” relates to Michael Janay, the Managing Member of defendant Go Ahead and Jump 4, LLC., who averred:

As a matter of business practice, all patrons who enter the Park for the first time are required to electronically sign a Participant Agreement, Release and Assumption of Risk . . . at a kiosk, or online, as a pre-condition to entry. Patrons are not permitted entry into the Park unless a Participation Agreement has been executed on their behalf and there are signs throughout the Park indicating the same. . . . [A]ll patrons who enter the Park are required to provide a valid email address when electronically signing the Participation Agreement.

. . . [O]nce the Participation Agreement is electronically signed, a copy of the executed Participation Agreement is sent to the email address provided by the patron.

. . . .

Based on the information provided, a copy of this Participation Agreement was sent to Shalonda Johnson’s email following Shalonda Johnson’s execution of the Participation Agreement at the Park on July 14, 2018. As indicated, Shalonda Johnson listed her son David Johnson[, ] who is the Minor[-]Plaintiff, and another minor Kevin Johnson. On that basis, Shalonda Johnson, David Johnson, and Kevin Johnson were permitted entry into the Park on July 14, 2018.

After considering the arguments of counsel, the motion judge granted defendants’ motion on March 24, 2021. The judge explained the basis of his decision in a Statement of Reasons attached to the order.

II.

Against this factual backdrop, plaintiffs argue the arbitration agreement is ambiguous and unenforceable as a matter of law. We reject these arguments and affirm the part of the Law Division’s Order upholding the enforceability of the arbitration clause. Because the Law Division’s decision to enforce this arbitration provision is purely a question of law, our standard of review is de novo. Flanzman v. Jenny Craig, Inc., 244 N.J. 119, 131 (2020); see also Kernahan v. Home Warranty Adm’r of Fla., Inc., 236 N.J. 301, 316 (2019) (“Whether a contractual arbitration provision is enforceable is a question of law, and we need not defer to the interpretative analysis of the trial . . . court[] unless we find it persuasive.”).

As a matter of public policy, our Supreme Court has upheld arbitration as a “favored means of dispute resolution.” Hojnowski, 187 N.J. at 342. The Court has consistently endorsed a “strong preference to enforce arbitration agreements, both at the state and federal level.” Hirsch v. Amper Fin. Servs., LLC, 215 N.J. 174, 186 (2013). In determining whether a valid agreement to arbitrate exists, we will apply “state contract-law principles.” Hojnowski, 187 N.J. at 342. Guided by these principles, “[a]n arbitration agreement is valid only if the parties intended to arbitrate because parties are not required ‘to arbitrate when they have not agreed to do so.'” Kernahan, 236 N.J. at 317 (quoting Volt Info. Scis., Inc. v. Bd. of Trs. of Leland Stanford Junior Univ., 489 U.S. 468, 478 (1989)).

Mutuality of assent is the hallmark of an enforceable contract. Thus, the initial inquiry is whether the parties actually and knowingly agreed to arbitrate their dispute. To reflect mutual assent to arbitrate, the terms of an arbitration provision must be “sufficiently clear to place a consumer on notice that he or she is waiving a constitutional or statutory right . . . .” Atalese v. U.S. Legal Servs. Grp., L.P., 219 N.J. 430, 443 (2014). “No particular form of words is necessary to accomplish a clear and unambiguous waiver of rights.” Id. at 444. If, “at least in some general and sufficiently broad way,” the language of the clause conveys arbitration is a waiver of the right to bring suit in a judicial forum, the clause will be enforced. Id. at 447. “The key . . . is clarity.” Barr v. Bishop Rosen & Co., 442 N.J.Super. 599, 607 (App. Div. 2015).

Here, plaintiffs claim the arbitration clause is ambiguous and therefore unenforceable because it contains “void, inaccurate, misleading and ambiguous language . . . .” and “confusing lower[-]case passages and all upper[-]case bold passages.” Plaintiffs argue Hojnowski, 187 N.J. at 327, “prohibits a parent of a minor child from releasing the child’s potential tort claims arising out of the use of a commercial recreational facility.” According to plaintiffs, JAMS, the named forum in the arbitration provision, is “not permitted to conduct arbitration in New Jersey” and thus the agreement should fail. We disagree.

The language in the arbitration clause states plaintiffs were “agreeing to arbitrate any dispute as set forth in this section” and were “waiving [their] right . . . to maintain a lawsuit.” It sets forth, “[b]y agreeing to arbitrate, [plaintiffs] understand that [they] will NOT have the right to have [their] claim[s] determined by a jury.” This language clearly and unambiguously puts plaintiffs on notice that they are waiving the right to a jury trial and the right to pursue their claims in a court of law. This part of the Agreement is therefore enforceable. See Flanzman, 244 N.J. at 137-38 (citing Atalese, 219 N.J. at 444-45).

Plaintiffs’ reliance on Hojnowski is misplaced. Writing for a unanimous Court, then Justice Zazzali[4] made clear “permitting arbitration of a minor’s claims is consistent with New Jersey case law discussing the enforceability of arbitration agreements that affect the rights of children.” 187 N.J. at 343. Here, plaintiff’s mother signed the Agreement that included an arbitration clause.

The unavailability of JAMS does not render the arbitration clause unenforceable. Although the parties agree JAMS is not available to arbitrate this case, the Agreement contains a severability clause that states: “If any term or provision of this [agreement] shall be held illegal, unenforceable, or in conflict with any law governing this [agreement] the validity of the remaining portions shall not be affected thereby.” Severability clauses “are indicative of the parties’ intent that the agreement as a whole survives the excision of an unenforceable provision.” Arafa v. Health Express Corp., 243 N.J. 147, 169 n.2 (2020). As the Supreme Court explained in Flanzman:

No New Jersey statutory provision or prior decision has elevated the selection of an “arbitral institution” or the designation of a “general process for selecting an arbitration mechanism or setting” to the status of essential contract terms, without which an arbitration agreement must fail.

To the contrary, the [New Jersey Arbitration Act (NJAA)] makes clear that its default provision for the selection of an arbitrator may operate in the absence of contractual terms prescribing such procedures. See N.J.S.A. 2A:23B-11(a). The NJAA reflects the Legislature’s intent that the parties’ omission of an arbitrator or arbitral organization, or their failure to set forth the method by which they will choose an arbitrator in the event of a dispute, will not preclude the enforcement of their agreement. Ibid.

[244 N.J. at 139.]

The arbitration clause at issue here must be interpreted in accordance with New Jersey law and the Federal Arbitration Act (FAA). The FAA and the NJAA provide for a court-appointed arbitrator if the designated arbitrator is unavailable. Id. at 141. The arbitration clause enables the parties to seek from a court “provisional remedies in aid of arbitration.” The language in the Agreement does not show the parties intended to forego arbitration if JAMS is unavailable. The designation of JAMS was not integral to the enforcement of the arbitration clause. Thus, the unavailability of JAMS does not invalidate the arbitration clause.

We next address plaintiffs’ arguments attacking the enforcement of the arbitration clause based on the doctrines of procedural and substantive unconscionability. In essence, plaintiffs argue requiring Johnson to read and sign an ambiguous contract of adhesion immediately before a birthday party left her with no other choice but to assent. Our Supreme Court has described the factors that constitute the doctrines of procedural and substantive unconscionability:

The defense of unconscionability, specifically, calls for a fact-sensitive analysis in each case, even when a contract of adhesion is involved. [The] Court has recognized that contracts of adhesion necessarily involve indicia of procedural unconscionability. [The Court has] identified, therefore, four factors as deserving of attention when a court is asked to declare a contract of adhesion unenforceable.

[I]n determining whether to enforce the terms of a contract of adhesion, [a court] look[s] not only to the take-it-or-leave-it nature or the standardized form of the document but also to [(1)] the subject matter of the contract, [(2)] the parties’ relative bargaining positions, [(3)] the degree of economic compulsion motivating the “adhering” party, and [(4)] the public interests affected by the contract. [Delta Funding Corp. v. Harris, 189 N.J. 28, 39-40 (2006) (internal citations omitted) (quoting Rudbart v. N. Jersey Dist. Water Supply Comm’n, 127 N.J. 344, 356 (1992)).]

Here, plaintiffs merely recycle their arguments relying on the Agreement’s alleged ambiguity without applying or analyzing the factors established by the Court in Delta Funding. We discern no basis, in fact or in law, to conclude this arbitration provision is substantively unconscionable. Finally, plaintiffs’ allegations that defendants acted intentionally and recklessly have no basis in fact and are not worthy of further comment by this court. Plaintiffs’ remaining argument lack sufficient merit to warrant discussion in a written decision. R. 2:11-3(e)(1)(E).

The order of the Law Division upholding the enforceability of defendants’ arbitration clause is affirmed. However, we vacate the part of the order that dismisses plaintiffs’ complaint with prejudice and remand the matter to the Law Division to stay any judicial proceedings related to this case pending the outcome of the arbitration. GMAC, 205 N.J. at 584 n.7; N.J.S.A. 2A:23B-7(g).

Affirmed in part, reversed in part, and remanded consistent with this opinion. We do not retain jurisdiction. ———

Notes:

[1] In the interest of clarity, we will occasionally also refer to plaintiffs by their names; we will refer to the child by his first name and his mother by her last name. No disrespect is intended.

[2] Although an order entered by the Law Division compelling or denying arbitration is appealable to this court as of right, pursuant to Rule 2:2-3(a)(3), the trial court must stay any judicial proceeding pending the outcome of the arbitration. The court may also limit the stay to arbitrable claims if other claims are severable. GMAC v. Pittella, 205 N.J. 572, 584 n.7 (2011) (citing N.J.S.A. 2A:23B-7(g)).

[3] In a certification submitted to the motion judge, Johnson averred the injury damaged “the growth plate in my son’s leg . . . and his leg did not continue to grow properly. He has undergone surgery to shorten the opposite leg and may need additional treatment in the future.”

[4] In October 2006, Governor Jon Corzine appointed Justice Zazzali to succeed Deborah T. Poritz as Chief Justice. Chief Justice Zazzali served in this capacity until June 17, 2007, when he reached the mandatory retirement age for all members of the New Jersey Judiciary.

———


One paragraph would have eliminated this lawsuit.

Badly written release and a bad attempt to tie two documents together almost cost outfitter

Hamric v. Wilderness Expeditions, Inc

State: Colorado, United States Court of Appeals, Tenth Circuit

Plaintiff: Alicia Hamric, individually, as representative of the Estate of Robert Gerald Hamric, and as next friend of Ava Hamric, a minor

Defendant: Wilderness Expeditions, Inc.

Plaintiff Claims: Negligence

Defendant Defenses: Release

Holding: For the defendant

Year: 2021

Summary

Badly written release and medical form with release language in them give the plaintiff the opportunity to win a lawsuit. However, a lawsuit where Colorado law is applied is going to support the release.

Facts

Members of the Keller Church of Christ in Keller, Texas, scheduled an outdoor excursion to Colorado, contracting with WEI for adventure planning and guide services. WEI is incorporated in Colorado and has its headquarters in Salida, Colorado. Jamie Garner served as the coordinator for the church group and the point-of-contact between the church members and WEI. The experience WEI provided included guides taking participants rappelling. WEI required all participants, before going on the outdoor excursion, to complete and initial a “Registration Form” and complete and sign a “Medical Form.”

WEI made the forms available to Mr. Garner for downloading and completion by the individual church members several months prior to the booked trip. Mr. Hamric initialed both blanks on the Registration Form and signed the Medical Form, dating it April 5, 2017. Andrew Sadousky, FNP-C, completed and signed the “Physician’s Evaluation” section of the Medical Form, certifying that Mr. Hamric was medically capable of participating in the outdoor activities listed on the form, including rappelling. Mr. Hamric’s signed forms were delivered to WEI upon the church group’s arrival in Colorado in July 2017.

After spending a night on WEI property, WEI guides took the church group, including Mr. Hamric, to a rappelling site known as “Quarry High.” Because the rappelling course had a section that WEI guides considered “scary,” the guides did not describe a particular overhang at the Quarry High site during the orientation session or before taking the church group on the rappelling course. Id. at 203.

Several members of the church group successfully descended Quarry High before Mr. Hamric attempted the rappel. As Mr. Hamric worked his way down the overhang portion of the course, he became inverted and was unable to right himself. Efforts to rescue Mr. Hamric proved unsuccessful, and he died of positional asphyxiation.

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

The Tenth Circuit Court of Appeals is an appellate court that sits in Denver. The Tenth Circuit hears cases from Colorado, Kansas, New Mexico, Oklahoma, Utah and Wyoming. The court, consequently, hears a few appeals of recreation cases.

This appealed covered four different legal issues. Three of the issues were procedural and won’t be reviewed. The fourth was the dismissal of the case by the lower-court magistrate on a motion for summary judgement because of the release.

The plaintiff argued the release should be read using Texas law because the release was read and signed in Texas.

There was no Jurisdiction and Venue Clause in the Release!

The defendant had the deceased sign two forms. One was a release, and the second was a medical form. Having a medical information formed signed is a quick give away that the defendant does not understand the legal issues involved. The defendant wrote both forms, so they conflicted with each other in some cases and attempted to tie the forms together. Neither really worked.

The plaintiff argued the forms were one because they conflicts would have made both forms basically invalid.

Further, language on the Medical Form is conflicting and ambiguous as to whether the two forms comprise a single agreement: Individuals who have not completed these forms will not be allowed to participate. I have carefully read all the sections of this agreement, understand its contents, and have initialed all sections of page 1 of this document. I have examined all the information given by myself, or my child. By the signature below, I certify that it is true and correct. Should this form and/or any wording be altered, it will not be accepted and the participant will not be allowed to participate.

Both the italicized language and the use of “forms” in the plural to describe the agreement support the conclusion that the Registration Form and the Medical Form are a single agreement. But the underlined language, using “form” in the singular, suggests the forms might constitute separate agreements. Otherwise, the singular use of “form” would suggest the unlikely result that a participant could not alter the wording of the Medical Form but could alter the wording of the Registration Form.

The plaintiff’s argument in many jurisdictions might have prevailed. However, the 10th circuit covers the outdoor recreation center of the universe, and state laws protect outdoor recreation, and outdoor recreation is a major source of income for these states. Consequently, any issues are going to lean towards protecting recreation.

After a lengthy review, the court found the forms were two different documents and ignored the medical form and the release like language in it.

We conclude, however, that this dispute of fact is not material to resolution of the primarily legal question regarding whether Mr. Hamric entered into a valid liability release with WEI.

The next issue is what law should apply to determine the validity of the release. Choice of laws is a complete course you can take in law school. I still have my Choice of Laws’ textbook after all these years because it is a complicated subject that hinges on minutia in some cases to determine what court will hear a case and what law will be applied.

The case was filed in the Federal Court covering Colorado. Since the defendant was not a Texas business or doing business in Texas, the lawsuit needed to be in the defendant’s state. Federal Court was chosen because disputes between citizens of two states should be held in a neutral court, which are the federal courts. A Texan might not feel they are getting a fair deal if they have to sue in a Colorado state court. That is called the venue. What court sitting where, will hear the case.

So, the decision on what court to sue in was somewhat limited. However, that is not the end. Once the court is picked the next argument is what law will be applied to the situation. The plaintiff argued Texas Law. Texas has stringent requirements on releases. The defendant argued Colorado law, which has much fewer requirements for releases.

Ms. Hamric further contends that under contract principles in the Restatement (Second) of Conflicts of Laws, Texas law applies because Mr. Hamric was a Texas resident who completed the Registration Form and the Medical Form while in Texas.

Here is the court’s analysis on what states laws should apply.

A more specific section of the Restatement addressing contracts lacking a choice-of-law provision provides additional guidance: (1) The rights and duties of the parties with respect to an issue in contract are determined by the local law of the state which, with respect to that issue, has the most significant relationship to the transaction and the parties under the principles stated in § 6. (2) In the absence of an effective choice of law by the parties . . ., the contacts to be taken into account in applying the principles of § 6 to determine the law applicable to an issue include: (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 domicile, residence, nationality, place of incorporation and place of business of the parties. These contacts are to be evaluated according to their relative importance with respect to the particular issue.

It is not a slam dunk for Colorado law. In this case, the plaintiff made a very good argument that Texas law should apply. The deceased was a Texas resident recruited in Texas by the defendant. The release had been given to the deceased in Texas, and he signed it in Texas. If the analysis ended there, Texas law would have applied.

There was more to the investigation the court is required to do.

We conclude that, under the Restatement, a Colorado court would apply Colorado law to determine the validity and enforceability of the liability release relied upon by WEI. First looking at § 6 of the Restatement, the liability release was drafted by a Colorado corporation to cover services provided exclusively in Colorado.

This argument switched the discussion from applying Texas law to Colorado law.

Applying out-of-state law to interpret the liability release would hinder commerce, as it would require WEI and other outdoor-recreation companies to know the law of the state in which a given participant lives. Such a rule would place a significant burden on outdoor-recreation companies who depend on out-of-state tourists for revenue because it would require a company like WEI to match the various requirements of the other forty-nine states. This approach would not give WEI the benefit of having logically molded its liability release to comply with Colorado law, the law of the state where WEI does business. Furthermore, Ms. Hamric’s primary argument for applying Texas law is that Mr. Hamric signed the forms in Texas. But a rule applying out-of-state law on that basis is likely to deter WEI from furnishing the liability release until a participant enters Colorado. And, while not providing participants the forms until arrival in Colorado might lessen WEI’s liability exposure under out-of-state law, such a practice would not benefit participants because it would pressure participants into a last-minute decision regarding whether to sign the liability release after having already traveled to Colorado for the outdoor excursion.

It is significant to note that the court looked at the issue of waiting until customers arrive in the state of Colorado to have them sign the release. The court intimated that doing so would put pressure on them to sign after already traveling to Colorado. Legally, that could be argued as duress, which voids a release or contract.

It is important to remember this point. If you are marketing out of state and book travel from out of state, you need to get your release in the hands of your out of state clients when they book the travel.

In a rare statement, the court also commented on the outdoor recreation industry in Colorado and the need for releases.

Colorado also has a strong interest in this matter. Colorado has a booming outdoor-recreation industry, in the form of skiing, hiking, climbing, camping, horseback riding, and rafting excursions. Colorado relies on tax receipts from the outdoor-recreation industry. And while many out-of-state individuals partake in these activities within Colorado, they often purchase their tickets or book excursion reservations before entering Colorado. If we applied Texas law because it is the state where Mr. Hamric signed the liability release, we would essentially allow the other forty-nine states to regulate a key industry within Colorado.

So Now What?

This was a badly written set of documents. Probably the attempt was made to cover as many legal issues as possible as many was as possible. Writing to documents that both contained release language. However, as written here and in Too many contracts can void each other out; two releases signed at different times can render both release’s void.
Write too many documents with release language in them and you can void all the releases.

The second major disaster is not having a venue and jurisdiction clause. The only real attempt to win the plaintiff had, was the release did not have a venue and jurisdiction clause. Never sign any contract without one, or if signing a contract written by someone else, find out where you have to sue and what law is applied to the contract. It makes a major difference.

Sad, so much time, energy and money were wasted on poorly written contracts (Yes, a release is a contract).

Sadder yet the plaintiff died.

What do you think? Leave a comment.

Who am I

Jim Moss

I’m an attorney specializing in the legal issues of the Outdoor Recreation Industry

I represent Manufactures, Outfitters, Guides, Reps, College & University’s, Camps, Youth Programs, Adventure Programs and Businesses

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Hamric v. Wilderness Expeditions, Inc.,

ALICIA HAMRIC, individually, as representative of the Estate of Robert Gerald Hamric, and as next friend of Ava Hamric, a minor, Plaintiff – Appellant,

v.

WILDERNESS EXPEDITIONS, INC., Defendant-Appellee.

No. 20-1250

United States Court of Appeals, Tenth Circuit

July 26, 2021

Appeal from the United States District Court for the District of Colorado (D.C. No. 1:19-CV-01442-NYW)

William J. Dunleavy, Law Offices of William J. Dunleavy, Allen, Texas (Stephen A. Justino, Boesen Law, Denver, Colorado, on the briefs), for Plaintiff – Appellant.

Malcolm S. Mead (Peter C. Middleton and Jacob R. Woods with him on the brief), Hall & Evans, Denver, Colorado, for Defendant – Appellee.

Before TYMKOVICH, Chief Judge, HOLMES, and McHUGH, Circuit Judges.

McHUGH, CIRCUIT JUDGE

Gerald Hamric, a Texas resident, joined a church group on an outdoor recreation trip to Colorado. The church group employed the services of Wilderness Expeditions, Inc. (“WEI”) to arrange outdoor activities. Before the outdoor adventure commenced, WEI required each participant, including Mr. Hamric, to complete a “Registration Form” and a “Medical Form.” On the first day, WEI led the church group on a rappelling course. In attempting to complete a section of the course that required participants to rappel down an overhang, Mr. Hamric became inverted. Attempts to rescue Mr. Hamric proved unsuccessful, and he died.

Alicia Hamric, Mr. Hamric’s wife, sued WEI for negligence. WEI moved for summary judgment, asserting the Registration Form and the Medical Form contained a release of its liability for negligence. Ms. Hamric resisted WEI’s motion for summary judgment in four ways. First, Ms. Hamric moved for additional time to conduct discovery under Federal Rule of Civil Procedure 56(d). Second, Ms. Hamric moved for leave to amend her complaint to seek exemplary damages based on willful and wanton conduct. Third, Ms. Hamric filed a motion for leave to disclose an expert out of time. Fourth, Ms. Hamric argued Texas law controlled the validity of the purported liability release in the Registration Form and the Medical Form, and additionally that the release was not conspicuous as required by Texas law.

In a single order, a magistrate judge addressed each of the pending motions. The magistrate judge first declined to grant leave to amend the complaint due to Ms. Hamric’s failure to (1) sustain her burden under Federal Rule of Civil Procedure 16(b) because the deadline for amendments had passed; and (2) make out a prima facie case of willful and wanton conduct as required by Colorado law to plead a claim seeking exemplary damages. Next, the magistrate judge concluded WEI was entitled to summary judgment, holding the liability release was valid under both Colorado law and Texas law. Finally, the magistrate judge denied as moot Ms. Hamric’s motions for additional discovery and to disclose an expert out of time.

We affirm the magistrate judge’s rulings. As to Ms. Hamric’s motion for leave to amend, a party seeking to amend a pleading after the deadline in a scheduling order for amendment must satisfy the standard set out by Federal Rule of Civil Procedure 16(b). But Ms. Hamric concedes she has never sought to satisfy the Rule 16(b) standard. Turning to the discovery motions, where this case hinges on the validity of the liability release and all facts necessary to this primarily legal issue appear in the record, we reject Ms. Hamric’s contentions that further discovery or leave to belatedly disclose an expert were warranted. Finally, while the magistrate judge’s summary judgment analysis was not free of error, we apply de novo review to that ruling. And, under de novo review, we conclude (1) relying on contract law to resolve the choice-of-law issue, as argued for by the parties, Colorado law, rather than Texas law, controls whether the Registration Form and the Medical Form contain a valid liability release; and (2) the forms contain a valid release for negligence by WEI, barring Ms. Hamric’s action.

I. BACKGROUND

A. The Rappelling Excursion, Mr. Hamric’s Death, and the Liability Release

Members of the Keller Church of Christ in Keller, Texas, scheduled an outdoor excursion to Colorado, contracting with WEI for adventure planning and guide services. WEI is incorporated in Colorado and has its headquarters in Salida, Colorado. Jamie Garner served as the coordinator for the church group and the point-of-contact between the church members and WEI. The experience WEI provided included guides taking participants rappelling. WEI required all participants, before going on the outdoor excursion, to complete and initial a “Registration Form” and complete and sign a “Medical Form.”[ 1]

The Registration Form has three sections. The first section requires the participant to provide personally identifiable information and contact information. The second section is entitled “Release of Liability & User Indemnity Agreement for Wilderness Expeditions, Inc.” App. Vol. I at 57, 83.[ 2] The text under this bold and underlined header reads, in full: I hereby acknowledge that I, or my child, have voluntarily agreed to participate in the activities outfitted by Wilderness Expeditions, Inc. I understand that the activities and all other hazards and exposures connected with the activities conducted in the outdoors do involve risk and I am cognizant of the risks and dangers inherent with the activities. I (or my child) and (is) fully capable of participating in the activities contracted for and willingly assume the risk of injury as my responsibility whether it is obvious or not. I understand and agree that any bodily injury, death, or loss of personal property and expenses thereof as a result of any, or my child’s, negligence in any scheduled or unscheduled activities associated with Wilderness Expeditions, Inc. are my responsibilities. I understand that accidents or illness can occur in remote places without medical facilities, physicians, or surgeons, and be exposed to temperature extremes or inclement weather. I further agree and understand that any route or activity chosen may not be of minimum risk, but may have been chosen for its interest and challenge. I agree to defend, indemnify, and hold harmless Wilderness Expeditions. Inc., the USDA Forest Service, Colorado Parks and Recreation Department, and any and all state or government agencies whose property the activities may be conducted on, and all of their officers, members, affiliated organizations, agents, or employees for any injury or death caused by or resulting from my or my child’s participation in the activities, scheduled and unscheduled, whether or not such injury or death was caused by my, or their, negligence or from any other cause. By signing my initials below, I certify this is a release of liability.

Id.[ 3] Immediately after this paragraph, the form reads, “Adult participant or parent/guardian initial here:(Initials).” Id. The third and final section of the form is entitled: “Adult Agreement or Parent’s/Guardian Agreement for Wilderness Expeditions, Inc.” Id. The text of this provision states: I understand the nature of the activities may involve the physical demands of hiking over rough terrain, backpacking personal and crew gear, and voluntarily climbing mountains to 14, 433 feet in elevation. Having the assurance of my, or my child’s, good health through a current physical examination by a medical doctor, I hereby give consent for me, or my child, to participate in the activities outfitted by Wilderness Expeditions, Inc. I have included in this form all necessary medical information about myself, or my child, that should be known by the leadership of the program. I assure my, or my child’s, cooperation and assume responsibility for my, or my child’s, actions. I understand that I am responsible for any medical expenses incurred in the event of needed medical attention for myself, or my child. I further agree that I will be financially responsible to repair or replace all items lost or abused by myself or my child. In the event of an emergency, I authorize my consent to any X-ray examination, medica1, dental, or surgical diagnosis, treatment, and/or hospital care advised and supervised by a physician, surgeon, or dentist licensed to practice. I understand that the designated next of kin will be contacted as soon as possible. By signing my initials below, I certify this is a release of liability.

Id. And, as with the second section, the form then provides a line for the participant or the parent or guardian of the participant to initial.

The Medical Form has four sections. The first section seeks information about the participant. The second section is entitled “Medical History.” Initially, this section asks the participant if he suffers from a list of medical conditions, including allergies, asthma, and heart trouble. If the participant does suffer from any medical conditions, the form requests that the participant explain the affirmative answer. Thereafter, the section includes the following language: Note: The staff will not administer any medications, including aspirin, Tums, Tylenol, etc. If you need any over the counter medications, you must provide them. Be sure to tell your staff members what medications you are taking. List any medications that you will have with you: Note about food: Trail food is by necessity a high carbohydrate, high caloric diet. It is high in wheat, milk products, sugar, com syrup, and artificial coloring/flavoring. If these food products cause a problem to your diet, you will be responsible for providing any appropriate substitutions and advise the staff upon arrival. * Doctor’s signature is required to participate. No other form can be substituted. By signing below a physician is verifying the medical history given above and approving this individual to participate.

Id. at 58, 84. The form then includes a section titled “Physician’s Evaluation.” Id. This section seeks certification of the participant’s medical capability to partake in the outdoor activities and asks the physician for contact information. It reads: The applicant will be taking part in strenuous outdoor activities that may include: backpacking, rappelling, hiking at 8-12, 000 feet elevation, and an all day summit climb up to 14, 433 feet elevation. This will include high altitude, extreme weather, cold water, exposure, fatigue, and remote conditions where medical care cannot be assured. The applicant is approved for participation. Physician Signature: ___ Date: ___ Physician Name: ___ Phone Number: ___ Office Address: ___ City: ___ State: ___ Zip: ___

Id. The final section of the form is entitled “Participant or Parent/Guardian Signature – All sections of these forms must be initialed or signed.” Id. The text of the section reads: Individuals who have not completed these forms will not be allowed to participate. I have carefully read all the sections of this agreement, understand its contents, and have initialed all sections of page 1 of this document[.] I have examined all the information given by myself, or my child. By the signature below, I certify that it is true and correct. Should this form and/or any wording be altered, it will not be accepted and the participant will not be allowed to participate.

Id.

WEI made the forms available to Mr. Garner for downloading and completion by the individual church members several months prior to the booked trip. Mr. Hamric initialed both blanks on the Registration Form and signed the Medical Form, dating it April 5, 2017. Andrew Sadousky, FNP-C, completed and signed the “Physician’s Evaluation” section of the Medical Form, certifying that Mr. Hamric was medically capable of participating in the outdoor activities listed on the form, including rappelling. Mr. Hamric’s signed forms were delivered to WEI upon the church group’s arrival in Colorado in July 2017.

After spending a night on WEI property, WEI guides took the church group, including Mr. Hamric, to a rappelling site known as “Quarry High.” Because the rappelling course had a section that WEI guides considered “scary,” the guides did not describe a particular overhang at the Quarry High site during the orientation session or before taking the church group on the rappelling course. Id. at 203.

Several members of the church group successfully descended Quarry High before Mr. Hamric attempted the rappel. As Mr. Hamric worked his way down the overhang portion of the course, he became inverted and was unable to right himself. Efforts to rescue Mr. Hamric proved unsuccessful, and he died of positional asphyxiation.

B. Procedural History

In the District of Colorado, Ms. Hamric commenced a negligence action against WEI, sounding in diversity jurisdiction. As a matter of right, Ms. Hamric amended her complaint shortly thereafter. See Fed. R. Civ. P. 15(a)(1)(A) (permitting plaintiff to file amended complaint “as a matter of course” within twenty-one days of serving original complaint). The parties, pursuant to 28 U.S.C. § 636(c), consented to a magistrate judge presiding over the case. WEI answered Ms. Hamric’s First Amended Complaint, in part raising the following affirmative defense: “Decedent Gerald Hamric executed a valid and enforceable liability release. Decedent Gerald Hamric also executed a medical evaluation form which Defendant relied upon. The execution of these document [sic] bars or reduces [Ms. Hamric’s] potential recovery.” Id. at 31-32.

The magistrate judge entered a Scheduling Order adopting several deadlines: (1) August 31, 2019, for amendments to the pleadings; (2) January 31, 2020, for Ms. Hamric to designate her expert witnesses; and (3) April 10, 2020, for the close of all discovery. The Scheduling Order also noted WEI’s defense based on the purported liability release, stating “[t]he parties anticipate that mediation . . . may be useful to settle or resolve the case after meaningful discovery and summary judgment briefing on the issue of the validity and enforceability of the liability release.” Id. at 38 (emphasis added). Finally, the Scheduling Order concluded with language reminding the parties that the deadlines adopted by the order “may be altered or amended only upon a showing of good cause.” Id. at 42 (italicized emphasis added).

In November 2019, after the deadline for amendments to the pleadings but before the discovery deadlines, WEI moved for summary judgment based on its affirmative defense that both the Registration Form and Medical Form contained a liability release that barred Ms. Hamric’s negligence claim. In support of its motion, WEI contended Colorado law controlled the interpretation and validity of the liability release. Ms. Hamric opposed summary judgment, arguing that because Mr. Hamric completed the forms in Texas, a Colorado court would apply Texas law and that, under Texas law, the liability release was not adequately conspicuous to be valid.

Ms. Hamric also sought to avoid disposition of WEI’s motion for summary judgment and dismissal of her action by filing three motions of her own. First, Ms. Hamric moved under Federal Rule of Civil Procedure 56(d) for additional time to conduct discovery, contending further discovery would, among other things, reveal details about Mr. Hamric’s completion of the forms and whether Colorado or Texas law should control the interpretation and validity of the purported liability release. Second, in February 2020, Ms. Hamric moved pursuant to Federal Rule of Civil Procedure 15(a), for leave to file a second amended complaint to seek exemplary damages under § 13-21-102 of the Colorado Revised Statutes based on new allegations of WEI’s willful and wanton conduct.[ 4] Ms. Hamric’s motion to amend, however, did not cite Federal Rule Civil Procedure 16(b) or seek leave to amend the August 31, 2019, Scheduling Order deadline for amendments to the pleadings. Third, in March 2020, Ms. Hamric moved for leave to disclose out of time a “‘Rappelling/Recreational Activities Safety’ expert.” App. Vol. II at 37. Ms. Hamric contended the expert’s opinions about the training, knowledge, and rescue efforts of the WEI guides supported her contention in her proposed second amended complaint that WEI acted in a willful and wanton manner.

The magistrate judge disposed of the four pending motions in a single order. Starting with Ms. Hamric’s motion for leave to amend her complaint, the magistrate judge concluded Ms. Hamric (1) “failed to meet her burden under Rule 16(b) of establishing good cause to generally amend the operative pleading” and (2) had not made out a prima facie case of wanton and willful conduct. Id. at 94. The magistrate judge then turned to WEI’s motion for summary judgment. The magistrate judge concluded WEI’s affirmative defense raised an issue sounding in contract law such that principles of contract law controlled the choice-of-law analysis. Applying contract principles, the magistrate judge determined that although Texas law imposed a slightly more rigorous standard for enforcing a liability release, the difference between Texas law and Colorado law was not outcome-determinative and the court could, therefore, apply Colorado law. The magistrate judge read Colorado law as holding that a liability release is valid and enforceable “so long as the intent of the parties was to extinguish liability and this intent was clearly and unambiguously expressed.” Id. at 106 (citing Heil Valley Ranch v. Simkin, 784 P.2d 781, 785 (Colo. 1989)). Applying this standard, the magistrate judge held the liability release used clear and simple terms such that, even though Mr. Hamric was inexperienced at rappelling, the release was valid and foreclosed Ms. Hamric’s negligence claim. Therefore, the magistrate judge granted WEI’s motion for summary judgment. And, having denied Ms. Hamric’s motion for leave to amend and granted WEI’s motion for summary judgment, the magistrate judge denied both of Ms. Hamric’s discovery motions as moot.

Ms. Hamric moved for reconsideration, which the magistrate judge denied. Ms. Hamric timely appealed.

II. DISCUSSION

On appeal, Ms. Hamric contests the denial of her motion for leave to amend and the grant of summary judgment to WEI. Ms. Hamric also tacitly challenges the magistrate judge’s denial of her discovery motions. We commence our analysis with Ms. Hamric’s motion for leave to amend, holding the magistrate judge did not abuse her discretion in denying the motion where the motion was filed after the Scheduling Order’s deadline for amendments to pleadings and Ms. Hamric did not attempt to satisfy Federal Rule of Civil Procedure 16(b)’s standard for amending a deadline in a scheduling order. Next, we discuss Ms. Hamric’s two discovery motions, concluding the magistrate judge did not abuse her discretion by denying the motions because (1) WEI’s motion for summary judgment presented a largely legal issue on which all facts necessary for resolution already appeared in the record; and (2) consideration of the proposed expert’s opinions potentially capable of supporting allegations of willful and wanton conduct was mooted upon Ms. Hamric failing to satisfy Rule 16(b)’s standard for amending her complaint to allege such conduct. Finally, we analyze WEI’s motion for summary judgment. Although the magistrate judge’s decision was not free of error, the errors are not outcome determinative on appeal given our de novo standard of review. Exercising de novo review, we conclude Colorado law governs the validity of the liability release. And considering the entirety of both the Registration Form and the Medical Form, we conclude the liability release satisfies the factors in Colorado law for enforceability. Therefore, we affirm the magistrate judge’s grant of summary judgment.

A. Ms. Hamric’s Motion for Leave to Amend

1. Standard of Review

“We review for abuse of discretion a district court’s denial of a motion to amend a complaint after the scheduling order’s deadline for amendments has passed.” Birch v. Polaris Indus., Inc., 812 F.3d 1238, 1247 (10th Cir. 2015). “An abuse of discretion occurs where the district court clearly erred or ventured beyond the limits of permissible choice under the circumstances.” Id. (quotation marks omitted). “A district court also abuses its discretion when it issues an arbitrary, capricious, whimsical or manifestly unreasonable judgment.” Id. (internal quotation marks omitted).

2. Analysis

“A party seeking leave to amend after a scheduling order deadline must satisfy both the [Federal Rule of Civil Procedure] 16(b) and Rule 15(a) standards.” Tesone v. Empire Mktg. Strategies, 942 F.3d 979, 989 (10th Cir. 2019). Under the former of those two rules, “[a] schedule may be modified only for good cause and with the judge’s consent.” Fed.R.Civ.P. 16(b)(4). To satisfy this standard a movant must show that “the scheduling deadlines cannot be met despite the movant’s diligent efforts.” Gorsuch, Ltd., B.C. v. Wells Fargo Nat’l Bank Ass’n, 771 F.3d 1230, 1240 (10th Cir. 2014) (internal quotation marks omitted). We have observed the “good cause” standard for amending deadlines in a scheduling order is “arguably [a] more stringent standard than the standards for amending a pleading under Rule 15.” Bylin v. Billings, 568 F.3d 1224, 1231 (10th Cir. 2009).

In moving for leave to file a second amended complaint, Ms. Hamric discussed Federal Rule of Civil Procedure 15 and how Colorado law did not permit a plaintiff to seek exemplary damages until after commencement of discovery. But Ms. Hamric did not advance an argument for amending the Scheduling Order as required by Rule 16(b). Nor does Ms. Hamric cite Rule 16(b) in her briefs on appeal, much less explain how she satisfied, in her papers before the magistrate judge, the Rule 16(b) standard. In fact, Ms. Hamric conceded at oral argument that, before the magistrate judge, she sought only to amend her complaint and “did not seek to amend the scheduling order.” Oral Argument at 7:42-7:46; see also id. at 7:31-9:10. Ms. Hamric also conceded at oral argument that she had not advanced an argument on appeal regarding satisfying Rule 16(b).

This omission by Ms. Hamric is fatal to her argument. Specifically, when a party seeking to amend her complaint fails, after the deadline for amendment in a scheduling order, to present a good cause argument under Rule 16(b), a lower court does not abuse its discretion by denying leave to amend. Husky Ventures, Inc. v. B55 Invs. Ltd., 911 F.3d 1000, 1019-20 (10th Cir. 2018). Even if a party who belatedly moves for leave to amend a pleading satisfies Rule 15(a)’s standard, the party must also obtain leave to amend the scheduling order. But Rule 16(b) imposes a higher standard for amending a deadline in a scheduling order than Rule 15(a) imposes for obtaining leave to amend a complaint. Thus, as Husky Ventures suggests, a party’s ability to satisfy the Rule 15(a) standard does not necessitate the conclusion that the party could also satisfy the Rule 16(b) standard. Id. at 1020; see also Bylin, 568 F.3d at 1231 (observing that Rule 16(b) imposes “an arguably more stringent standard than the standards for amending a pleading under Rule 15”). Accordingly, where Ms. Hamric did not attempt to satisfy the Rule 16(b) standard for amending the Scheduling Order, we affirm the district court’s denial of Ms. Hamric’s motion for leave to amend.

B. Ms. Hamric’s Discovery Motions

After WEI moved for summary judgment, Ms. Hamric filed a pair of discovery-related motions-a motion for additional discovery before disposition of WEI’s motion for summary judgment and a motion to disclose an expert out of time. The magistrate judge denied both motions as moot. After stating the applicable standard of review, we consider each motion, affirming the magistrate judge’s rulings.

1. Standard of Review

We review the denial of a Federal Rule of Civil Procedure 56(d) motion for additional discovery for an abuse of discretion. Ellis v. J.R.’s Country Stores, Inc., 779 F.3d 1184, 1192 (10th Cir. 2015). Likewise, we review the denial of a motion to revisit a scheduling order and allow the disclosure of an expert out of time for an abuse of discretion. Rimbert v. Eli Lilly & Co., 647 F.3d 1247, 1253-54 (10th Cir. 2011). “We will find an abuse of discretion when the district court bases its ruling on an erroneous conclusion of law or relies on clearly erroneous fact findings.” Ellis, 779 F.3d at 1192 (internal quotation marks omitted). “A finding of fact is clearly erroneous if it is without factual support in the record or if, after reviewing all of the evidence, we are left with the definite and firm conviction that a mistake has been made.” Id. (quotation marks omitted).

2. Analysis

a. Motion for additional discovery

Before the April 10, 2020, deadline for discovery, WEI filed its motion for summary judgment based on the liability release. Ms. Hamric moved under Federal Rule of Civil Procedure 56(d) to delay resolution of WEI’s motion for summary judgment, asserting additional discovery would allow her to learn further information about the liability release. The magistrate judge denied the motion as moot, concluding further discovery was not needed to assess the validity of the liability release.

Under Rule 56(d), a party opposing a motion for summary judgment may seek additional time for discovery. To do so, a party must “submit an affidavit (1) identifying the probable facts that are unavailable, (2) stating why these facts cannot be presented without additional time, (3) identifying past steps to obtain evidence of these facts, and (4) stating how additional time would allow for rebuttal of the adversary’s argument for summary judgment.” Cerveny v. Aventis, Inc., 855 F.3d 1091, 1110 (10th Cir. 2017). “[S]ummary judgment [should] be refused where the nonmoving party has not had the opportunity to discover information that is essential to his opposition.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 n.5 (1986). “Requests for further discovery should ordinarily be treated liberally.” Cerveny, 855 F.3d at 1110. “But relief under Rule 56(d) is not automatic.” Id. And Rule 56’s provision allowing a non-moving party to seek additional discovery before disposition on a motion for summary judgment “is not a license for a fishing expedition.” Lewis v. City of Ft. Collins, 903 F.2d 752, 759 (10th Cir. 1990); see also Ellis, 779 F.3d at 1207-08 (affirming denial of Rule 56(d) motion where party “required no further discovery to respond to the . . . summary-judgment motion” and additional discovery sought was speculative).

Through the affidavit supporting her Rule 56(d) motion, Ms. Hamric sought four areas of additional discovery. First, she sought discovery on “the drafting of the purported liability release forms” and the meaning of language on the forms. App. Vol. I at 94. Regardless of whether Colorado or Texas law applies, the four corners of the Registration Form and Medical Form, not WEI’s thought process when drafting the forms, controls the validity of the liability release. See B & B Livery, Inc. v. Riehl, 960 P.2d 134, 138 (Colo. 1998) (requiring that intent of parties to extinguish liability be “clearly and unambiguously expressed” (quoting Heil Valley Ranch, 784 P.2d at 785)); Dresser Indus., Inc. v. Page Petroleum, Inc., 853 S.W.2d 505, 508 (Tex. 1993) (“[A] party seeking indemnity from the consequences of that party’s own negligence must express that intent in specific terms within the four corners of the contract.”). Therefore, the drafting process employed by WEI and its understanding of the language of the forms is not relevant to whether the forms included sufficiently specific language to foreclose a claim for negligence.

Second, Ms. Hamric sought to discover information about WEI’s process for distributing the forms and how the church group members, including Mr. Hamric, completed and submitted the forms. Ms. Hamric also requested time to discover matters related to the choice-of-law issue, including the “place of contracting,” “the place of performance,” and “the domicile, residence nationality, place of incorporation and place of business of the parties.” App. Vol. I at 95. Information on these matters, however, was known to Ms. Hamric prior to the magistrate judge’s summary judgment ruling. For instance, the record shows Mr. Hamric received and completed the forms in Texas a few months before the WEI-led excursion and that the church group provided WEI the completed forms upon its arrival at WEI’s location in Colorado. Accordingly, there was no need to delay summary judgment proceedings to discover matters already known to the parties. See Ellis, 779 F.3d at 1207-08.

Third, Ms. Hamric, as part of a challenge to the authenticity of the forms, initially sought to discover information regarding anomalies and alterations on the forms attached to WEI’s motion for summary judgment, as well as evidence of fraud by WEI. Subsequent to Ms. Hamric filing her motion for additional discovery, WEI provided her the original forms signed by Mr. Hamric, and she withdrew her challenge to the authenticity of the forms. Accordingly, by the time the district court ruled on WEI’s motion for summary judgment and Ms. Hamric’s motion for additional discovery, the requests for discovery regarding the authenticity of the forms was moot.

Fourth, Ms. Hamric sought time to discover “evidence of willful and wanton conduct by Defendant WEI and/or by its agents, servants and/or employees.” Id. Discovery on this matter, however, became moot with the magistrate judge’s denial of Ms. Hamric’s motion for leave to amend her complaint to seek exemplary damages and add allegations of willful and wanton conduct, a ruling we affirm. See supra at 12-14, Section II(A).

Having considered each additional discovery request advanced by Ms. Hamric, we conclude the magistrate judge did not abuse her discretion by ruling on WEI’s motion for summary judgment without permitting Ms. Hamric additional time for discovery. Accordingly, we affirm the magistrate judge’s denial of Ms. Hamric’s Rule 56(d) motion.

b. Motion for leave to disclose expert out of time

Ms. Hamric moved for leave to disclose a “‘Rappelling/Recreational Activities Safety’ expert” out of time. App. Vol. II at 37. Attached to the motion was a Federal Rule of Civil Procedure 26(a)(2) expert disclosure, offering opinions about the alleged negligent and/or willful and wanton conduct of WEI and its employees. The magistrate judge denied this motion as moot. Considering the magistrate judge’s other rulings and our holdings on appeal, we conclude the magistrate judge did not abuse her discretion. Any opinion offered by the expert as to willful and wanton conduct lost relevance with the denial of Ms. Hamric’s motion for leave to amend her complaint to add allegations of willful and wanton conduct and to seek exemplary damages-a ruling we affirmed supra at 12-14, Section II(A). And the expert’s opinion about WEI acting in a negligent manner lost relevance upon the magistrate judge concluding the liability release was valid and barred Ms. Hamric from proceeding on her negligence claim-a ruling we affirm infra at 19-37, Section II(C). Accordingly, we affirm the magistrate judge’s denial of Ms. Hamric’s motion for leave to disclose an expert out of time.

C. WEI’s Motion for Summary Judgment

After stating our standard of review, we discuss Ms. Hamric’s contentions that the magistrate judge (1) applied the wrong standard when considering WEI’s affirmative defense based on the liability release and (2) resolved issues of disputed fact in favor of WEI. Although we conclude the magistrate judge’s ruling is not free of error, the errors do not bind us because we need not repeat them when conducting our de novo review of the grant of summary judgment. Thus, we proceed to consider the validity of the liability release. In conducting our analysis, we hold that, where the parties contend contract principles provide the framework for our choice-of-law analysis, Colorado law governs the validity of the release.[ 5] And we conclude that, under Colorado law, the liability release is valid and enforceable so as to foreclose Ms. Hamric’s negligence claim. Therefore, we affirm the magistrate judge’s grant of summary judgment.

1. Standard of Review

We review the district court’s rulings on summary judgment de novo. Universal Underwriters Ins. Co. v. Winton, 818 F.3d 1103, 1105 (10th Cir. 2016). Summary judgment is appropriate if “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); accord Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Anderson, 477 U.S. at 250. “In reviewing a grant of summary judgment, we need not defer to factual findings rendered by the district court.” Lincoln v. BNSF Ry. Co., 900 F.3d 1166, 1180 (10th Cir. 2018) (internal quotation marks omitted). For purposes of summary judgment, “[t]he nonmoving party is entitled to all reasonable inferences from the record.” Water Pik, Inc. v. Med-Sys., Inc., 726 F.3d 1136, 1143 (10th Cir. 2013). Finally, “we can affirm on any ground supported by the record, so long as the appellant has had a fair opportunity to address that ground.” Alpine Bank v. Hubbell, 555 F.3d 1097, 1108 (10th Cir. 2009) (internal quotation marks omitted).

2. Alleged Errors by the Magistrate Judge

Ms. Hamric argues the magistrate judge (1) applied the incorrect standard when considering WEI’s affirmative defense and (2) resolved disputed issues of material fact in favor of WEI. We consider each contention in turn.

a. Standard applicable to affirmative defenses

Ms. Hamric contends the magistrate judge announced an incorrect standard of review and impermissibly shifted evidentiary burdens onto her, as the non-moving party. The disputed language in the magistrate judge’s opinion states: When, as here, a defendant moves for summary judgment to test an affirmative defense, it is the defendant’s burden to demonstrate the absence of any disputed fact as to the affirmative defense asserted. See Helm v. Kansas, 656 F.3d 1277, 1284 (10th Cir. 2011). Once the defendant meets its initial burden, the burden shifts to the nonmovant to put forth sufficient evidence to demonstrate the essential elements of her claim(s), see Anderson, 477 U.S. at 248; Simms v. Okla. ex rel. Dep’t of Mental Health & Substance Abuse Servs., 165 F.3d 1321, 1326 (10th Cir. 1999), and to “demonstrate with specificity the existence of a disputed fact” as to the defendant’s affirmative defense, see Hutchinson v. Pfeil, 105 F.3d 562, 564 (10th Cir. 1997).

App. Vol. II at 100 (emphasis added). Ms. Hamric takes issue with the emphasized phrase.

Nothing on the pages the magistrate judge cited from Anderson and Simms requires a plaintiff responding to a motion for summary judgment based on an affirmative defense to identify evidence supporting each element of her claim. See Anderson, 477 U.S. at 248 (requiring nonmoving party in face of “properly supported motion for summary judgment” to “‘set forth specific facts showing that there is a genuine issue for trial'” (quoting First Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288 (1968))); Simms, 165 F.3d at 1326, 1328 (discussing summary judgment standard in context of employment discrimination claim and burden-shifting framework from McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)). In fact, the standard announced by the magistrate judge would unnecessarily require a plaintiff, in response to a motion for summary judgment based on an affirmative defense, to identify evidence supporting elements of her claim never drawn into question by the defendant. Placing such a burden on a plaintiff is all the more problematic where, as here, the parties contemplated a bifurcated summary judgment process initially focused on the validity of the liability release, and WEI filed its motion for summary judgment before the close of discovery.

We have previously stated that a district court errs by requiring a party opposing summary judgment based on an affirmative defense to “establish at least an inference of the existence of each element essential to the case.” Johnson v. Riddle, 443 F.3d 723, 724 n.1 (10th Cir. 2006) (quotation marks omitted). We reaffirm that conclusion today. To defeat a motion for summary judgment, a plaintiff, upon the defendant raising and supporting an affirmative defense, need only identify a disputed material fact relative to the affirmative defense. Id.; Hutchinson, 105 F.3d at 564; see also Leone v. Owsley, 810 F.3d 1149, 1153-54 (10th Cir. 2015) (discussing defendant’s burden for obtaining summary judgment based on an affirmative defense). Only if the defendant also challenges an element of the plaintiff’s claim does the plaintiff bear the burden of coming forward with some evidence in support of that element. See Tesone, 942 F.3d at 994 (“The party moving for summary judgment bears the initial burden of showing an absence of any issues of material fact. Where . . . the burden of persuasion at trial would be on the nonmoving party, the movant may carry its initial burden by providing ‘affirmative evidence that negates an essential element of the nonmoving party’s claim’ or by ‘demonstrating to the Court that the nonmoving party’s evidence is insufficient to establish an essential element of the nonmoving party’s claim.’ If the movant makes this showing, the burden then shifts to the nonmovant to ‘set forth specific facts showing that there is a genuine issue for trial.'” (first quoting Celotex Corp., 477 U.S. at 330, then quoting Anderson, 477 U.S. at 250)); Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670-71 (10th Cir. 1998) (if summary judgment movant carries its initial burden of showing a lack of evidence in support of an essential element of plaintiff’s claim, “the burden shifts to the nonmovant to go beyond the pleadings and set forth specific facts” supporting the essential element (internal quotation marks omitted)).

The magistrate judge’s erroneous statement regarding Ms. Hamric’s burden, however, does not foreclose our ability to further review the grant of summary judgment. Rather, in accord with the applicable de novo standard of review, we review WEI’s motion for summary judgment under the standard that “should have been applied by the [magistrate judge].”[ 6] Nance v. Sun Life Assurance Co. of Can., 294 F.3d 1263, 1266 (10th Cir. 2002) (quotation marks omitted).

b. Resolution of disputed issues of material fact

Ms. Hamric contends the magistrate judge impermissibly resolved two issues of disputed fact in WEI’s favor. We discuss each asserted factual issue in turn, concluding factual disputes existed and the magistrate judge incorrectly resolved one of the disputes against Ms. Hamric. However, even if this factual dispute were material, we may proceed to analyze the validity of the liability release after resolving the dispute in Ms. Hamric’s favor. See Lincoln, 900 F.3d at 1180 (“In reviewing a grant of summary judgment, we need not defer to factual findings rendered by the district court.” (internal quotation marks omitted)).

i. Language of Registration Form and Medical Form

In moving for summary judgment, WEI’s brief contained edited versions of the Registration Form and Medical Form that focused the reader’s attention on the language most pertinent to Mr. Hamric’s participation in the outdoor excursion and the release of liability. For instance, the version of the forms in WEI’s brief left out phrases such as “(or my child)” and the accompanying properly-tensed-and-conjugated verb that would apply if the forms were completed by a parent or guardian of the participant, rather than by the participant himself. Compare App. Vol. I at 46, with id. at 57, 83.

Although WEI and Ms. Hamric attached full versions of the forms to their papers on the motion for summary judgment, the magistrate judge’s quotation of the language in the forms mirrored that which appeared in WEI’s brief. Ms. Hamric contends the magistrate judge, in not quoting the full forms, resolved a dispute of fact regarding the language of the forms in WEI’s favor. It is not uncommon for a court to focus on the pertinent language of a contract or liability release when putting forth its analysis. In this case, Ms. Hamric claims the forms should be reviewed on the whole. Although there is no indication the magistrate judge did not review the forms in their entirety, despite her use of incomplete quotations, we attach full versions of the Registration Form and Medical Form completed by Mr. Hamric as an appendix to this opinion. And we consider all the language on the forms when assessing whether the forms contain a valid liability release.

ii. Registration Form and Medical Form as single form

The magistrate judge viewed the Registration Form and the Medical Form as a single, “two-page agreement.” App. Vol. II at 103; see also id. at 101 (“Adult customers are required to execute a two-page agreement with WEI before they are permitted to participate in WEI-sponsored activities. The first page of the agreement is a ‘Registration Form’, followed by a ‘Medical Form’ on page two.”). Ms. Hamric contends the two forms are separate agreements, not a single agreement. While a jury could have concluded that the Registration Form and Medical Form were separate agreements, this dispute of fact is not material given applicable law regarding the construction of agreements that are related and simultaneously executed.

It is clear from the record that a participant needed to complete both forms before partaking in the WEI-lead excursion. Further, while the Medical Form required a signature and a date, the Registration Form required only that a participant place his initials on certain lines, suggesting the forms were part of a single agreement. However, the forms do not contain page numbers to indicate they are part of a single agreement. Further, language on the Medical Form is conflicting and ambiguous as to whether the two forms comprise a single agreement: Individuals who have not completed these forms will not be allowed to participate. I have carefully read all the sections of this agreement, understand its contents, and have initialed all sections of page 1 of this document. I have examined all the information given by myself, or my child. By the signature below, I certify that it is true and correct. Should this form and/or any wording be altered, it will not be accepted and the participant will not be allowed to participate.

App., Vol. I at 58, 84 (emphases added). Both the italicized language and the use of “forms” in the plural to describe the agreement support the conclusion that the Registration Form and the Medical Form are a single agreement. But the underlined language, using “form” in the singular, suggests the forms might constitute separate agreements. Otherwise the singular use of “form” would suggest the unlikely result that a participant could not alter the wording of the Medical Form but could alter the wording of the Registration Form.[ 7] Accord Navajo Nation v. Dalley, 896 F.3d 1196, 1213 (10th Cir. 2018) (describing the cannon of expressio unius est exclusio alterius as providing “that the ‘expression of one item of an associated group or series excludes another left unmentioned'” and that “the enumeration of certain things in a statute suggests that the legislature had no intent of including things not listed or embraced.” (quoting NLRB v. SW Gen., Inc., 137 S.Ct. 929, 940 (2017))). Thus, a reasonable jury could have found the Registration Form and the Medical Form were separate agreements.

We conclude, however, that this dispute of fact is not material to resolution of the primarily legal question regarding whether Mr. Hamric entered into a valid liability release with WEI. Under Colorado law, it is well established that a court may, and often must, construe two related agreements pertaining to the same subject matter as a single agreement. See Bledsoe v. Hill, 747 P.2d 10, 12 (Colo.App. 1987) (“If a simultaneously executed agreement between the same parties, relating to the same subject matter, is contained in more than one instrument, the documents must be construed together to determine intent as though the entire agreement were contained in a single document. Although it is desirable for the documents to refer to each other, there is no requirement that they do so.” (citing In re Application for Water Rights v. N. Colo. Water Conservancy Dist., 677 P.2d 320 (Colo. 1984); Harty v. Hoerner, 463 P.2d 313 (Colo. 1969); Westminster v. Skyline Vista Dev. Co., 431 P.2d 26 (Colo. 1967))).[ 8] Thus, although a jury could conclude the Registration Form and Medical Form technically constitute separate agreements, we consider the agreements together when determining if Mr. Hamric released WEI for its negligent acts.

3. Choice-of-Law Analysis

At the heart of WEI’s motion for summary judgment was whether Colorado or Texas law controls and whether the release is valid under the appropriate law. On appeal, Ms. Hamric contends “contract principles” control the choice-of-law analysis because WEI’s affirmative defense “was a contract issue on a purported agreement to release liability.” Opening Br. at 26-27. Ms. Hamric further contends that under contract principles in the Restatement (Second) of Conflicts of Laws, Texas law applies because Mr. Hamric was a Texas resident who completed the Registration Form and the Medical Form while in Texas. WEI agrees that if contract principles govern the choice-of-law issue, the Restatement (Second) on Conflict of Laws provides the appropriate factors for this court to consider. But WEI contends (1) the liability release is valid under both Colorado and Texas law and (2) the relevant factors in §§ 6 and 188 of the Restatement favor application of Colorado law if this court is inclined to resolve the conflict-of-law issue.

Outdoor recreation and tourism is a growing industry in Colorado, as well as several other states within our circuit. And many outdoor tourism outfitters, like WEI, require participants to complete forms containing liability releases. See Redden v. Clear Creek Skiing Corp., ___ P.3d ___, 2020 WL 7776149, at *2 (Colo.App. Dec. 31, 2020); Hamill v. Cheley Colo. Camps, Inc., 262 P.3d 945, 947-48 (Colo.App. 2011); see also Dimick v. Hopkinson, 422 P.3d 512, 515-16 (Wyo. 2018); Penunuri v. Sundance Partners, Ltd., 301 P.3d 984, 986 (Utah 2013); Beckwith v. Weber, 277 P.3d 713, 716-17 (Wyo. 2012). With the prevalence and recurrence of questions regarding the validity of liability releases in mind, and viewing the choice-of-law issue as sounding in contract law as urged by the parties, we consider whether the law of the state where the outdoor recreation company is based and the outdoor excursion occurs controls or whether the law of the state of residence of the participant controls.

a. Framework for choice-of-law analysis

“In a diversity action we apply the conflict-of-laws rules of the forum state.” Kipling v. State Farm Mut. Auto. Ins. Co., 774 F.3d 1306, 1310 (10th Cir. 2014). “This is true even when choice of law determinations involve the interpretation of contract provisions.” Shearson Lehman Brothers, Inc. v. M & L Invs., 10 F.3d 1510, 1514 (10th Cir. 1993). Accordingly, this court must look to Colorado choice-of-law rules to determine if Colorado or Texas law applies.

“Colorado follows the Restatement (Second) of Conflict of Laws (1971) . . . for both contract and tort actions,” Kipling, 774 F.3d at 1310 (citing Wood Brothers Homes, Inc. v. Walker Adjustment Bureau, 601 P.2d 1369, 1372 (Colo. 1979); First Nat’l Bank v. Rostek, 514 P.2d 314, 319-20 (Colo. 1973)). Absent a forum-state “statutory directive,” the Restatement advises a court to consider seven factors: (a) the needs of the interstate and international systems, (b) the relevant policies of the forum, (c) the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue (d) the protection of justified expectations, (e) the basic policies underlying the particular field of law, (f) certainty, predictability and uniformity of result, and (g) ease in the determination and application of the law to be applied.

Restatement (Second) of Conflict of Laws: Choice-of-Law Principles § 6 (Am. L. Inst. 1971). The commentary to § 6 identifies the first factor as “[p]robably the most important function of choice-of-law rules” because choice-of-law rules are designed “to further harmonious relations between states and to facilitate commercial intercourse between them.” Id. § 6 cmt. d. Meanwhile, the second factor takes into account any special interests, beyond serving as the forum for the action, that the forum state has in the litigation. Id. § 6 cmt. e. As to the fourth factor-“the protection of justified expectations, “- the comments to § 6 note: This is an important value in all fields of the law, including choice of law. Generally speaking, it would be unfair and improper to hold a person liable under the local law of one state when he had justifiably molded his conduct to conform to the requirements of another state.

Id. § 6 cmt. g.

A more specific section of the Restatement addressing contracts lacking a choice-of-law provision provides additional guidance: (1) The rights and duties of the parties with respect to an issue in contract are determined by the local law of the state which, with respect to that issue, has the most significant relationship to the transaction and the parties under the principles stated in § 6. (2) In the absence of an effective choice of law by the parties . . ., the contacts to be taken into account in applying the principles of § 6 to determine the law applicable to an issue include: (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 domicile, residence, nationality, place of incorporation and place of business of the parties. These contacts are to be evaluated according to their relative importance with respect to the particular issue.

Restatement (Second) of Conflict of Laws: Law Governing in Absence of Effective Choice by the Parties § 188.

b. Colorado law controls

We conclude that, under the Restatement, a Colorado court would apply Colorado law to determine the validity and enforceability of the liability release relied upon by WEI. First looking at § 6 of the Restatement, the liability release was drafted by a Colorado corporation to cover services provided exclusively in Colorado. Applying out-of-state law to interpret the liability release would hinder commerce, as it would require WEI and other outdoor-recreation companies to know the law of the state in which a given participant lives. Such a rule would place a significant burden on outdoor-recreation companies who depend on out-of-state tourists for revenue because it would require a company like WEI to match the various requirements of the other forty-nine states. This approach would not give WEI the benefit of having logically molded its liability release to comply with Colorado law, the law of the state where WEI does business. Furthermore, Ms. Hamric’s primary argument for applying Texas law is that Mr. Hamric signed the forms in Texas. But a rule applying out-of-state law on that basis is likely to deter WEI from furnishing the liability release until a participant enters Colorado. And, while not providing participants the forms until arrival in Colorado might lessen WEI’s liability exposure under out-of-state law, such a practice would not benefit participants because it would pressure participants into a last-minute decision regarding whether to sign the liability release after having already traveled to Colorado for the outdoor excursion.

Colorado also has a strong interest in this matter. Colorado has a booming outdoor-recreation industry, in the form of skiing, hiking, climbing, camping, horseback riding, and rafting excursions. Colorado relies on tax receipts from the outdoor-recreation industry. And while many out-of-state individuals partake in these activities within Colorado, they often purchase their tickets or book excursion reservations before entering Colorado. If we applied Texas law because it is the state where Mr. Hamric signed the liability release, we would essentially allow the other forty-nine states to regulate a key industry within Colorado. Such an approach is impractical and illogical.

Further, the considerations and contacts listed in § 188 of the Restatement favor application of Colorado law. As to the first contact, in accord with the commentary, a contract is formed in “the place where occurred the last act necessary to give the contract binding effect.” Id. § 188 cmt. e. Here, that act occurred when the church group provided the forms to WEI in Colorado; for, before the forms were provided to WEI, Mr. Hamric had not conveyed his acceptance to WEI and WEI did not know whether Mr. Hamric would complete the forms and agree to the liability release. See Scoular Co. v. Denney, 151 P.3d 615, 619 (Colo.App. 2006) (discussing means of accepting an offer and stating “general rule that communication is required of the acceptance of the offer for a bilateral contract”). The second contact consideration is not applicable because the terms of the Medical Form precluded alteration, and there is no suggestion in the record Mr. Hamric attempted to negotiate the terms of the liability release before signing the forms. The third and fourth factors heavily favor application of Colorado law because WEI provides outdoor excursion services in Colorado, not Texas, and Mr. Hamric knew such when he signed the forms. Finally, the fifth factor is neutral because Mr. Hamric was a resident of Texas and WEI has its place of business in Colorado. With three factors favoring Colorado law, one factor inapplicable, and one factor neutral, the overall weight of the § 188 factors favors application of Colorado law.

Concluding that both § 6 and § 188 of the Restatement strongly support application of Colorado law, we hold that a Colorado court would choose to apply Colorado law, not Texas law, when determining whether the Registration Form and Medical Form contain a valid liability release. We, therefore, proceed to that analysis.

4. The Liability Release Is Valid under Colorado Law

Under Colorado law, “[a]greements attempting to exculpate a party from that party’s own negligence have long been disfavored.” Heil Valley Ranch, 784 P.2d at 783.But, such “[e]xculpatory agreements are not necessarily void,” as courts recognize that “[t]hey stand at the crossroads of two competing principles: freedom of contract and responsibility for damages caused by one’s own negligent acts.” Id. at 784.In assessing the validity of a release, “a court must consider: (1) the existence of a duty to the public; (2) the nature of the service performed; (3) whether the contract was fairly entered into; and (4) whether the intention of the parties is expressed in clear and unambiguous language.” Jones v. Dressel, 623 P.2d 370, 376 (Colo. 1981); see also Chadwick v. Colt Ross Outfitters, Inc., 100 P.3d 465, 467 (Colo. 2004) (a release agreement “must be closely scrutinized to ensure that the intent of the parties is expressed in clear and unambiguous language and that the circumstances and the nature of the service involved indicate that the contract was fairly entered into”).

Ms. Hamric challenges only WEI’s ability to show “whether the intention of the parties is expressed in clear and unambiguous language.”[ 9] “To determine whether the intent of the parties is clearly and unambiguously expressed, [the Colorado Supreme Court has] examined the actual language of the agreement for legal jargon, length and complication, and any likelihood of confusion or failure of a party to recognize the full extent of the release provisions.” Chadwick, 100 P.3d at 467. In general accord with this statement, federal district courts in Colorado have discerned five factors from Colorado Supreme Court decisions to determine if a release is unambiguous: (1) “whether the agreement is written in simple and clear terms that are free from legal jargon”; (2) “whether the agreement is inordinately long or complicated”; (3) “whether the release specifically addresses the risk that caused the plaintiff’s injury”; (4) “whether the contract contains any emphasis to highlight the importance of the information it contains”; and (5) “whether the plaintiff was experienced in the activity making risk of that particular injury reasonably foreseeable.” Salazar v. On the Trail Rentals, Inc., Civil Action No. 11-cv-00320-CMA-KMT, 2012 WL 934240, at *4 (D. Colo. Mar. 20, 2012) (deriving factors from Heil Valley Ranch, 784 P.2d at 785; Chadwick, 100 P.3d at 467); see also Eburn v. Capitol Peak Outfitters, Inc., 882 F.Supp.2d 1248, 1253 (D. Colo. 2012) (citing factors set forth in Salazar). Each and every factor, however, need not be satisfied for a court to uphold the validity of a liability release, as the Colorado Supreme Court has upheld the validity of a release where the signor was a novice at the outdoor activity in question. See B & B Livery, Inc., 960 P.2d at 138 (upholding liability release without finding every factor favored validity); id. at 139-40 (Hobbs, J., dissenting) (discussing signor’s inexperience riding horses).

The first four factors taken from Heil Valley Ranch and Chadwick support the validity of the liability release in the Registration Form and Medical Form. The forms span a mere two pages, with language pertinent to the liability release in only four sections of the forms. And those four sections are generally free of legal jargon. For instance, in detailing the scope of the release, the Registration Form required the participant/signor to “hold harmless Wilderness Expeditions, Inc. . . . for any injury or death caused by or resulting from my or my child’s participation in the activities.”[ 10] App. Vol. I at 57, 83. And this language comes after the form describes several of the risks associated with the activities, including “that accidents or illness can occur in remote places without medical facilities” and that “any route or activity chosen [by WEI] may not be of minimum risk, but may have been chosen for its interest and challenge.” Id. The Registration Form also twice places bolded emphasis on the fact that a participant was releasing WEI from liability: “By signing my initials below, I certify this is a release of liability.”Id. Finally, although not explicitly a factor identified by Colorado courts, we observe WEI provided the church group with the forms, and Mr. Hamric completed the forms, months before the booked excursion. Thus, if Mr. Hamric personally had difficulty understanding any of the language on the forms, he had ample time to contact WEI for an explanation or consult legal counsel.

The sole factor clearly cutting against enforcement of the liability release is Mr. Hamric’s lack of rappelling experience. However, as noted above, the Colorado Supreme Court has not found this consideration to be dispositive against the enforcement of a liability waiver. See B & B Livery, Inc., 960 P.2d at 138-39. And, where the liability release between Mr. Hamric and WEI is otherwise clear, specific, and uncomplicated, Mr. Hamric’s lack of experience rappelling is insufficient to defeat the release as a whole.

Accordingly, applying Colorado law, we hold the liability release is valid and its enforcement bars Ms. Hamric’s negligence claim. Therefore, we affirm the magistrate judge’s grant of summary judgment in favor of WEI.

III. CONCLUSION

We affirm the denial of Ms. Hamric’s motion for leave to amend her complaint because the magistrate judge did not abuse her discretion where Ms. Hamric did not attempt to satisfy the Federal Rule of Civil Procedure 16(b) standard for amending the Scheduling Order. We also affirm the denial of Ms. Hamric’s discovery motions, holding the magistrate judge did not abuse her discretion where the items Ms. Hamric sought to discover were either already in the record, were not necessary to determine the validity of the liability release, or went to Ms. Hamric’s effort to obtain exemplary damages, which she could not pursue given the denial of her motion for leave to amend her complaint. Finally, applying de novo review to the choice-of-law issue and the issue regarding the validity of the liability release, we conclude Colorado law applies and the release is valid and enforceable under that law. Therefore, we affirm the magistrate judge’s grant of summary judgment to WEI.

———

Notes:

[ 1]Here, we summarize the Registration Form and the Medical Form. Copies of the full forms, taken from the Appendix submitted by Ms. Hamric, are attached to this opinion. We rely on the full forms, and all of the language thereon, when conducting our analysis. Further, as discussed infra at 25-27, Section II(C)(2)(b)(ii), while the Registration Form and Medical Form could be viewed as separate forms, Colorado law requires us to consider both forms together when conducting our analysis.

[ 2]Throughout our opinion, we cite simultaneously to the Registration Form or Medical Form attached to WEI’s motion for summary judgment, App. Vol. I at 57- 58, and the Registration Form or Medical Form attached to Ms. Hamric’s response to WEI’s motion for summary judgment, id. at 83-84. Although the language of the two sets of forms are identical, the clarity of the text varies somewhat, seemingly based on the proficiency of the respective copy machines used by the parties.

[ 3]In quoting the forms, we seek to replicate the font size, spacing, and bolding of the text of the Registration Form and Medical Form completed by Mr. Hamric.

[ 4] Under Colorado law: A claim for exemplary damages in an action governed by [§ 13-21-102 of the Colorado Revised Statutes] may not be included in any initial claim for relief. A claim for exemplary damages in an action governed by this section may be allowed by amendment to the pleadings only after the exchange of initial disclosures . . . and the plaintiff establishes prima facie proof of a triable issue.

Colo. Rev. Stat. § 13-21-102(1.5)(a).

[ 5]Although Ms. Hamric’s action sounds in tort law, on appeal, the parties do not contend that tort principles provide the framework for the choice-of-law analysis regarding the liability release. Thus, we reach no conclusion as to whether Colorado law or Texas law would govern if tort principles played a role in the choice-of-law analysis.

[ 6]While the magistrate judge incorrectly stated the standard governing WEI’s motion for summary judgment, it is not apparent the magistrate judge’s analysis and conclusion that WEI was entitled to summary judgment hinged on Ms. Hamric’s failure to identify evidence supporting each element of her negligence claim. Rather, the magistrate judge correctly granted WEI summary judgment based on the liability release and WEI’s affirmative defense.

[ 7]WEI has advanced inconsistent positions on whether the Registration Form and Medical Form comprised a single agreement. Although on appeal WEI argues the forms constitute a single agreement releasing liability, WEI’s Answer to Ms. Hamric’s Complaint treats the two forms as separate agreements, stating that “[d]ecedent Gerald Hamric executed a valid and enforceable liability release. Decedent Gerald Hamric also executed a medical evaluation.” App. Vol. I at 32 (emphasis added).

[ 8]Although we conclude that Colorado law, not Texas law, controls the validity of the liability release, infra at 28-33, Section II(C)(3), Texas law likewise permits a court to read separate but related documents together when determining the intent of the parties, see Fort Worth Indep. Sch. Dist. v. City of Fort Worth, 22 S.W.3d 831, 840 (Tex. 2000) (“The City’s argument ignores well-established law that instruments pertaining to the same transaction may be read together to ascertain the parties’ intent, even if the parties executed the instruments at different times and the instruments do not expressly refer to each other, and that a court may determine, as a matter of law, that multiple documents comprise a written contract. In appropriate instances, courts may construe all the documents as if they were part of a single, unified instrument.” (footnotes omitted)).

[ 9]Ms. Hamric also argues that the question of whether Mr. Hamric and WEI entered into a liability release was a question of fact for a jury. But Ms. Hamric withdrew her fact-based challenge to the authenticity of the forms. Further, under Colorado law, “[t]he determination of the sufficiency and validity of an exculpatory agreement is a question of law for the court to determine.” Jones v. Dressel, 623 P.2d 370, 376 (Colo. 1981). And, where a liability release has force only if it is “clear and unambiguous,” id., the question of the existence of a liability release and its validity are one in the same because if the language relied on by a defendant does not form a valid release, then no liability release exists.

[ 10] The omitted language marked by the ellipses also required a signor/participant to hold federal and state agencies harmless for injuries or death that might occur as a result of WEI-led activities on federal or state land. Like the rest of the release, this language is plain and clear such that any reasonably educated individual would understand the nature of the release as to these third parties.


Washington Appellate court reviews release law in 2021 and the requirements on when a release is ambiguous and/or conspicuous.

Like most other states, if you signed the release, you read and agree to the release. However, that is about the only similarity to release law in other states as pointed out in this decision.

McCoy v. PFWA Lacey, LLC, dba Planet Fitness,

State: Washington, Court of Appeals of Washington, Division 2

Plaintiff: Carol J. McCoy

Defendant: PFWA Lacey, LLC, dba Planet Fitness

Plaintiff Claims: Negligence

Defendant Defenses: Release

Holding: For the Defendant

Year: 2021

Summary

The release used by the health club stopped the lawsuit filed by the plaintiff for her injuries. However, this decision points out two very different requirements Washington’s law requires for a release to be valid. No release will work in all 43 states that allow the use of a release.

Facts

On February 1, 2016, McCoy entered into a membership agreement at Planet Fitness in Lacey. The first page of the two-page membership agreement begins with a section covering personal information, membership rate, and financial terms of the membership. The final sentence of this section states, “Cancellation & Billing Policies: I have read and understand the cancellation rights and billing policies on the front and back of this agreement,” followed by McCoy’s signature/initials. Clerk’s Papers (CP) at 25. Below McCoy’s signature/initials is a large box marked “PAYMENT AUTHORIZATION” with McCoy’s bank account information, and her signature after the paragraph authorizing a monthly membership fee payment.

In July 2016, McCoy fell from a stair stepper machine at Planet Fitness. She alleged that the emergency stop button failed to stop the machine, causing her injury. In January 2019, McCoy filed an amended complaint, naming Planet Fitness and the manufacturer of the machine, the Brunswick Corporation, [ 2] as defendants. She alleged claims of negligence and failure to provide a safe product.

Planet Fitness filed a motion for summary judgment, arguing in part that McCoy had signed an enforceable liability waiver. In support of its motion, it provided a copy of the membership agreement as well as excerpts from a transcript of McCoy’s deposition testimony. In her deposition, when shown the membership agreement, McCoy stated that she did not remember seeing the membership agreement before and that she did not remember signing it.

McCoy responded to the motion, arguing that the waiver provision in the membership agreement was inconspicuous and ambiguous, and because McCoy was not given an opportunity to read or review the agreement, it was unwittingly signed. In a supporting declaration, McCoy recalled the day she signed the membership agreement: 3.I was there for a short time, and I spoke to a person who appeared to be the manager, or at least was working behind the desk, who presented me with some documents to sign. He identified these documents as mere formalities and that I had to sign them in order to join the club. He showed me where to sign on a couple documents and I signed them, but I was not given an opportunity to read all the language, and when I mentioned that, he told me he would send me copies of these documents in the mail to my home address. He never did. 4.What little I could see of the documents was in very fine, small print which I could not read, at least on one of the documents, and the first time I saw the documents was at my deposition. I did not have time to read them at my deposition and I would have had difficulty anyway because the print was so small. . . . . As I said, the only direction I got from the person who was working behind the counter was to “sign here” and I did. He immediately took the documents back and told me that he would mail them to me, but I never received copies in the mail so I never really had an opportunity to review them before the incident occurred, or any time afterwards.

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

Washington’s law since 1988 has allowed the use of releases to allow parties to stop litigation.

The Washington Supreme Court has recognized the right of parties “‘expressly to agree in advance that the defendant is under no obligation of care for the benefit of the plaintiff, and shall not be liable for the consequences of conduct which would otherwise be negligent.'”

Washington has three ways to void releases, one that is found in most states and two slightly different ways. The first, a release fails if it violates public policy. This means the release is void based on who the release is attempting to protect or the services being offered that are to be covered by the release. However, in Washington, the state has adopted six factors to define public policy.

Six factors are considered in determining whether exculpatory agreements violate public policy. The court considers whether (1) the agreement concerns an endeavor of a type generally thought suitable for public regulation; (2) the party seeking exculpation is engaged in performing a service of great importance to the public, which is often a matter of practical necessity for some members of the public; (3) such party holds itself out as willing to perform this service for any member of the public who seeks it, or at least for any member coming within certain established; (4) because of the essential nature of the service, in the economic setting of the transaction, the party invoking exculpation possesses a decisive advantage of bargaining strength against any member of the public who seeks the services; (5) in exercising a superior bargaining power, the party confronts the public with a standardized adhesion contract of exculpation, and makes no provision whereby a purchaser may pay additional reasonable fees and obtain protection against negligence; and (6) the person or property of members of the public seeking such services must be placed under the control of the furnisher of the services, subject to the risk of carelessness on the part of the furnisher, its employees or agents. Wagenblast v. Odessa Sch. Dist. 105-157-166J, 110 Wash.2d 845, 851-55, 758 P.2d 968 (1988) (citing Tunkl v. Regents of Univ. of Cal., 60 Cal.2d 92, 32 Cal.Rptr. 33, 383 P.2d 441, 446 (1963)).

The second and third ways are very different from other states. If the negligent act falls below the standard of protection for others, it is void. This phrase is not defined in Washington’s law that I can find, even though it is quoted in several cases. I am guessing it is similar to a gross negligence argument. The act or omission of the defendant was so great as to far exceed negligence. However, I’m not sure.

Generally, a liability waiver or exculpatory clause in a contract is “enforceable unless (1) it violates public policy, (2) the negligent act falls greatly below the legal standard for protection of others, or (3) it is inconspicuous.” The first two exceptions are not at issue here. A liability waiver provision is not enforceable if the releasing language is “‘so inconspicuous that reasonable persons could reach different conclusions as to whether the document was unwittingly signed.’

The inconspicuous argument was the main argument made by the defendant in this case and discussed by the court. Washington has six factors to determine if the language in a contract is inconspicuous.

Courts look to several factors in deciding whether a liability waiver provision is conspicuous, including: (1) whether the waiver provision is set apart or hidden within other provisions, (2) whether the heading or caption of the provision is clear, (3) whether the waiver provision is set off in capital letters or in bold type, (4) whether there is a signature line below the waiver provision, (5) what the language says above the signature line, and (6) whether it is clear that the signature is related to the waiver provision.

The is far more requirements than most states, in fact; most states only require the waiver or release provisions be set apart or not hidden within the contract. Washington also requires that there be a heading or caption providing notice of the importance of the release or waiver section. That language of the exculpatory provisions must be in capital letters or bold type. The signature on the document must be below the exculpatory provisions. That means if your contract has a signature on the front of the document but references release language on the back, the release will be void.

The language above the signature line must indicate the person is giving up their legal rights or the signature line must be specifically below the release provisions, and the signature must clearly relate to the release provisions.

This six-part analysis of conspicuous is not done individually but looking at the agreement as a whole. Yet the analysis the court made was of each point of the test and reviewed individually, not as a whole.

We do not look to whether the plaintiff unwittingly signed the form from her subjective viewpoint, but whether, “objectively, the waiver provision was so inconspicuous that it is unenforceable.” Essentially, if the waiver provision is hidden, i.e. inconspicuous, it is unenforceable. Nevertheless, even if the waiver provision is conspicuous, and a person signs without reading it, the provision is enforceable unless the signor was not given an opportunity to read it. (“[A] person who signs an agreement without reading it is bound by its terms as long as there was ‘ample opportunity to examine the contract in as great a detail as he cared, and he failed to do so for his own personal reasons.'”)

The following two pages of analysis in the decision by the court looked at the release in detail to determine if the six factors had been met. The court found the waiver language in the contract was conspicuous and thus valid.

The next argument made by the plaintiff was the plaintiff did not have time to read the release.

McCoy admits that she did not read the agreement. Even though she did not read the agreement, she would be bound by its terms only if there was opportunity to examine the contract in as great a detail as she cared, and she failed to do so for her own personal reasons. (“Where a party has signed a contract without reading it, that party cannot successfully argue that mutual assent was lacking as long as the party was not deprived of the opportunity to read the contract.”).

Basically, if you signed the agreement, you have read and understood the agreement.

So Now What?

No release or waiver can be written to satisfy the laws of all 50 states or the 43 states that allow the use of a release or waiver. Even though Washington’s law is similar to the law in most states, it is very different in several aspects, enough so that if you operate in or are based in Washington your release must be written to meet Washington’s law.

No other state has the requirements for conspicuous that are required for a waiver or release to be valid like Washington’s law. It is specific and as stated by the court, if all six parts of the requirements are not met the release is void.

What do you think? Leave a comment.

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McCoy v. PFWA Lacey, LLC, dba Planet Fitness,

McCoy v. PFWA Lacey, LLC, dba Planet Fitness,

Carol J. McCoy, a single person, Respondent,

PFWA Lacey, LLC, a Washington limited company, dba Planet Fitness, Petitioner,

and

BRUNSWICK CORPORATION, a foreign corporation, Defendant.

No. 54400-8-II

Court of Appeals of Washington, Division 2

May 11, 2021

UNPUBLISHED OPINION

Veljacic, J.

Carol McCoy brought suit against Planet Fitness-Lacey for negligence after she was injured using a fitness machine. Planet Fitness filed a motion for summary judgment, arguing that McCoy was precluded from bringing suit because she signed a membership agreement that contained a liability waiver provision.[ 1] McCoy argued that the waiver was inconspicuous and that she was not given an opportunity to read the membership agreement.

The court denied Planet Fitness’s motion, determining that material issues of fact remained regarding whether McCoy unwittingly signed the waiver provision because it was inconspicuous. Planet Fitness appeals. We reverse the order denying summary judgment because the waiver provision was conspicuous and McCoy did not demonstrate an issue of material fact bearing on whether she was provided an opportunity to read the membership agreement.

FACTS

On February 1, 2016, McCoy entered into a membership agreement at Planet Fitness in Lacey. The first page of the two-page membership agreement begins with a section covering personal information, membership rate, and financial terms of the membership. The final sentence of this section states, “Cancellation & Billing Policies: I have read and understand the cancellation rights and billing policies on the front and back of this agreement,” followed by McCoy’s signature/initials. Clerk’s Papers (CP) at 25. Below McCoy’s signature/initials is a large box marked “PAYMENT AUTHORIZATION” with McCoy’s bank account information, and her signature after the paragraph authorizing a monthly membership fee payment.

The waiver provision is found below the payment authorization box, a little more than halfway down the first page of the agreement. Image Omitted

CPat25.

Below a dark line is a banner containing the bolded, capitalized words “RELEASE OF LIABILITY,” “ASSUMPTION OF RISK,” “CLUB RULES,” and “BUYER’S NOTICE & RIGHT TO CANCEL.” CP at 25. Directly below that banner is a paragraph in the same small sized font as the majority of the agreement that enumerates the waiver of legal rights. The waiver provision states that certain risks are inherent in physical activity and that the signer understands and voluntarily accepts responsibility for risk of injury or loss arising from the use of Planet Fitness facilities. It goes on to state twice that the member agrees that Planet Fitness is not liable for injury resulting from negligent conduct or omission of Planet Fitness or anyone acting on its behalf. The second paragraph of the waiver provision reads: I understand that I am not obligated to sign this agreement and should not do so if there are any unfilled blanks. I understand my right of cancellation and the billing and refund policies. I understand my release of liability, assumption of risk and agreement to indemnify, defend and hold harmless and I have been given the opportunity to review and ask questions related to my use of facilities . . . and other equipment. . . . I agree to comply with Planet Fitness’ membership policies and club rules. . . . Planet fitness may, in its sole discretion, modify any policy or club rule at any time and from time to time without advance notice. Planet Fitness reserves the right, in its sole discretion, to refund the pro-rated cost of unused services. . . . By signing below, I acknowledge and agree to all of the terms contained on the front and back of this agreement.

CP at 25.

McCoy’s signature appears immediately below this paragraph, next to a Planet Fitness authorized signature.

Bold, capital letters at the bottom of the first page and underneath the signature line discuss the nonrefundable initiation fee, then an acknowledgement of receipt of a written description of the health studio services and equipment and a complete copy of the rules on separate lines, followed by lines for initials. Finally, the page details, again in bold capital letters, the process for cancellation of the membership agreement. The second page of the agreement has a large bold heading that reads “PLEASE READ AND UNDERSTAND THIS AGREEMENT BEFORE SIGNING.” CP at 26. The remaining language of the contract is immaterial to this appeal.

In July 2016, McCoy fell from a stair stepper machine at Planet Fitness. She alleged that the emergency stop button failed to stop the machine, causing her injury. In January 2019, McCoy filed an amended complaint, naming Planet Fitness and the manufacturer of the machine, the Brunswick Corporation, [ 2] as defendants. She alleged claims of negligence and failure to provide a safe product.

Planet Fitness filed a motion for summary judgment, arguing in part that McCoy had signed an enforceable liability waiver. In support of its motion, it provided a copy of the membership agreement as well as excerpts from a transcript of McCoy’s deposition testimony. In her deposition, when shown the membership agreement, McCoy stated that she did not remember seeing the membership agreement before and that she did not remember signing it.

McCoy responded to the motion, arguing that the waiver provision in the membership agreement was inconspicuous and ambiguous, and because McCoy was not given an opportunity to read or review the agreement, it was unwittingly signed. In a supporting declaration, McCoy recalled the day she signed the membership agreement: 3.I was there for a short time, and I spoke to a person who appeared to be the manager, or at least was working behind the desk, who presented me with some documents to sign. He identified these documents as mere formalities and that I had to sign them in order to join the club. He showed me where to sign on a couple documents and I signed them, but I was not given an opportunity to read all the language, and when I mentioned that, he told me he would send me copies of these documents in the mail to my home address. He never did. 4.What little I could see of the documents was in very fine, small print which I could not read, at least on one of the documents, and the first time I saw the documents was at my deposition. I did not have time to read them at my deposition and I would have had difficulty anyway because the print was so small. . . . . As I said, the only direction I got from the person who was working behind the counter was to “sign here” and I did. He immediately took the documents back and told me that he would mail them to me, but I never received copies in the mail so I never really had an opportunity to review them before the incident occurred, or any time afterwards.

CP at 140-41.

In reply, Planet Fitness argued that the waiver provision was conspicuous under Washington law, and provided a screen shot of an undated e-mail from Planet Fitness to McCoy with a copy of McCoy’s signed membership agreement attached.

The court denied Planet Fitness’s motion for summary judgment. Planet Fitness filed a motion for reconsideration, which the court also denied. We granted Planet Fitness’s motion for discretionary review.

ANALYSIS

I. Standard of Review

Summary judgment is appropriate where there is no genuine issue of material fact and the movant is entitled to a judgment as a matter of law. Chauvlier v. Booth Creek Ski Holdings, Inc., 109 Wn.App. 334, 338, 35 P.3d 383 (2001). On a motion for summary judgment, we view all evidence and draws all reasonable inferences in the light most favorable to the nonmoving party. Id. at 338-39. Where different competing inferences may be drawn from the evidence, the issue must be resolved by the trier of fact. Kuyper v. Dep’t. of Wildlife, 79 Wn.App. 732, 739, 904 P.2d 793 (1995). On appeal, we review an order denying summary judgement de novo. Chauvlier, 109 Wn.App. at 339.

On appeal, Planet Fitness argues that the court erred in denying its motion for summary judgment, because McCoy signed an enforceable liability waiver provision. Planet Fitness contends that the liability waiver provision was so conspicuous that it could not have been unwittingly signed and is therefore enforceable. McCoy argues that a genuine issue of material fact remains as to whether the waiver provision was conspicuous and whether she was given adequate opportunity to read the membership agreement.

II. Legal Principles

The Washington Supreme Court has recognized the right of parties “‘expressly to agree in advance that the defendant is under no obligation of care for the benefit of the plaintiff, and shall not be liable for the consequences of conduct which would otherwise be negligent.'” Wagenblast v. Odessa Sch. Dist., 110 Wn.2d 845, 848, 758 P.2d 968 (1988) (quoting W. Page Keeton, et al, Prosser and Keeton on Torts § 68, at 482 (5th ed. 1984)).

Generally, a liability waiver or exculpatory clause in a contract is “enforceable unless (1) it violates public policy, (2) the negligent act falls greatly below the legal standard for protection of others, or (3) it is inconspicuous.” Johnson v. Spokane to Sandpoint, LLC, 176 Wn.App. 453, 458, 309 P.3d 528 (2013). The first two exceptions are not at issue here. A liability waiver provision is not enforceable if the releasing language is “‘so inconspicuous that reasonable persons could reach different conclusions as to whether the document was unwittingly signed.'” Johnson v. UBAR, LLC, 150 Wn.App. 533, 538, 210 P.3d 1021 (2009) (quoting McCorkle v. Hall, 56 Wn.App. 80, 83, 782 P.2d 574 (1989)).[ 3]

Courts look to several factors in deciding whether a liability waiver provision is conspicuous including: (1) whether the waiver provision is set apart or hidden within other provisions, (2) whether the heading or caption of the provision is clear, (3) whether the waiver provision is set off in capital letters or in bold type, (4) whether there is a signature line below the waiver provision, (5) what the language says above the signature line, and (6) whether it is clear that the signature is related to the waiver provision. See Baker v. City of Seattle, 79 Wn.2d 198, 202, 484 P.2d 405 (1971); McCorkle, 56 Wn.App. at 83-84; Chauvlier, 109 Wn.App. at 342; Stokes v. Bally’s Pacwest, Inc., 113 Wn.App. 442, 448, 54 P.3d 161 (2002).

We do not look to whether the plaintiff unwittingly signed the form from her subjective viewpoint, but whether, “objectively, the waiver provision was so inconspicuous that it is unenforceable.” Stokes, 113 Wn.App. at 446. Essentially, if the waiver provision is hidden, i.e. inconspicuous, it is unenforceable. Nevertheless, even if the waiver provision is conspicuous, and a person signs without reading it, the provision is enforceable unless the signor was not given an opportunity to read it. Chauvlier, 109 Wn.App. at 341 (“[A] person who signs an agreement without reading it is bound by its terms as long as there was ‘ample opportunity to examine the contract in as great a detail as he cared, and he failed to do so for his own personal reasons.'”) (internal quotation marks omitted) (quoting Nat’l Bank of Wash. v. Equity Inv’rs, 81 Wn.2d 886, 913, 506 P.2d 20 (1973)).

III. Analysis

A. Conspicuousness of the Waiver Provision

We first consider whether the waiver provision is inconspicuous so as to invalidate the agreement. Stokes, 113 Wn.App. at 446. Here, the waiver provision contains some, but not all of the elements that we have found significant in determining the conspicuousness of waiver provisions.

1. The Waiver Provision is Set Apart from Other Provisions

To determine if the waiver provision is conspicuous, we first look at whether it is set apart or hidden within other provisions. In Baker, our Supreme Court held that the waiver provision was unenforceable because it was set in the middle of the agreement without anything to distinguish it from the rest of the terms of the agreement. 79 Wn.2d at 202. Here, the waiver provision is set off by a shaded banner or header with a title indicating that the subject of the following section is a “RELEASE OF LIABILITY” and “ASSUMPTION OF RISK.” CP at 25. The waiver language is not hidden within other provisions. This factor supports a finding of conspicuousness.

2. The Heading of the Waiver Provision is Clear

We also look to whether the heading or caption of the waiver provision is clear. For example, the plaintiff in McCorkle argued that the title “Liability Statement” in the agreement did not allow him to “conclude [that] future negligent conduct was being released.” 56 Wn.App. at 83. This court contrasted the title “Liability Statement” with the release provisions in two earlier cases that were deemed conspicuous because their titles clearly and unambiguously indicated that they dealt with a waiver of liability. Id. In contrast, in Chauvlier, this court found clear and enforceable a waiver provision entitled “LIABILITY RELEASE & PROMISE NOT TO SUE. PLEASE READ CAREFULLY!” 109 Wn.App. at 342.

Here, the shaded header reads: “RELEASE OF LIABILITY,” “ASSUMPTION OF RISK,” “CLUB RULES,” and “BUYER’S NOTICE & RIGHT TO CANCEL.” CP at 25. Although the header indicates that release of liability and assumption of the risk are not the only topics of the following paragraphs, it is clear from the header what the following provision contains-namely, a release of liability and an assumption of the risk. The inclusion of the other two subjects does not make the heading of the provision unclear or the reader ignorant of what is contained below the shaded header. This factor supports a finding of conspicuousness.

3. The Appearance of the Waiver Provision Language is Not Emphasized We then look to the appearance or attributes of the waiver provision itself, like whether the words are emphasized in capital letters or in bold type. For example, in Stokes and Chauvlier, the words indicating release of liability appear in bold or capital letters throughout the provisions. 113 Wn.App. at 448; 109 Wn.App. at 342. Here, the body of the waiver provision is in the same size and type of text as the remainder of the form and has no bold or capital letters. This factor does not support a finding of conspicuousness.

4. The Signature Line

We next consider the signature line and its relation to the waiver provision. Specifically, whether it is located below the waiver provision, what the language above the signature line indicates, and whether it is clear that the required signature is related to the release of liability. Chauvlier, 109 Wn.App. at 342; Stokes, 113 Wn.App. at 448; UBAR, LLC, 150 Wn.App. at 538.

a. The Signature Line is Below the Waiver Provision

Here, the signature line is below the waiver provision. This supports a finding of conspicuousness.

b. The Language Immediately Above the Signature Line does Not Relate only to the Waiver Provision

Here, although the signature line is located below the waiver provision, the signature and waiver are separated by an intervening paragraph. The first paragraph underneath the header relates to the waiver of liability. The second paragraph, situated directly above the signature line relates to the club rules and the right to cancel. This second paragraph also states: “By signing below, I acknowledge and agree to all of the terms contained on the front and back of this agreement.” CP at 25.

In Stokes, this court held that reasonable minds could not differ regarding the conspicuousness of a waiver provision contained in a retail installment contract. 113 Wn.App. at 448. This court’s determination relied in part on the fact that a statement immediately below the signature line said that the contract contained a waiver and release to which the signatory would be bound. Stokes, 113 Wn.App. at 448. In Chauvlier, this court relied in part on a statement directly above the signature line reading: “I have read, understood, and accepted the conditions of the Liability Release printed above” in making its determination that the waiver provision at issue was conspicuous and enforceable. 109 Wn.App. at 342. Here, the statement above the signature line is unlike those contained in the contracts held to be enforceable in Stokes and Chauvlier, because it relates to all provisions of the membership agreement, rather than only the waiver provision. This factor does not support a finding of conspicuousness.

c. The Required Signature Relates to the Waiver Provision

Although separated by a paragraph, the signature line clearly relates to the waiver provision because it is spatially oriented near the waiver provision. It is within the area set off by the large banner described above and by its own language relates to the “all of the terms contained” in the agreement. CP at 25. This factor also favors a finding of conspicuousness.

In summary, although the signature line does not correspond solely to the waiver provision, the provision is set apart from the other provisions of the contract by a banner, the caption heading within the banner clearly identifies the contents of the waiver, the signature line is below the waiver provision and it clearly relates to the waiver provision. We conclude that the waiver provision is conspicuous.

B. Opportunity to Examine the Agreement

McCoy admits that she did not read the agreement. Even though she did not read the agreement, she would be bound by its terms only if there was opportunity to examine the contract in as great a detail as she cared, and she failed to do so for her own personal reasons. Yakima County ( W.Valley) Fire Prot. Dist. No. 12 v. City of Yakima, 122 Wn.2d 371, 389, 858 P.2d 245 (1993) (“Where a party has signed a contract without reading it, that party cannot successfully argue that mutual assent was lacking as long as the party was not deprived of the opportunity to read the contract.”).

McCoy asserts that the Planet Fitness employee identified the agreement as a “mere formalit[y]” that she had to sign in order to join the club. CP at 140. The employee “showed [her] where to sign on a couple documents and [she] signed them, but [she] was not given an opportunity to read all the language” because he immediately took the papers back. CP at 140-41. When McCoy mentioned that she had not been able to read them, he told her that he would mail them to her home address. McCoy was apparently satisfied with not reading it before signing. Although McCoy asserts that she was not given the opportunity to read the membership agreement, there is no indication that she could not have read the contract either before or after she signed it if she had asked. Additionally, McCoy sought out the membership and there is no evidence that she was coerced. The waiver was conspicuous as a matter of law, McCoy has not shown that there is a genuine issue of material fact regarding her opportunity to read the membership agreement. In any case, even if she felt rushed to sign the document, the waiver language was, as a matter of law, conspicuous enough for her to notice it.

CONCLUSION

The liability waiver was conspicuous. McCoy did not demonstrate an issue of fact regarding her opportunity to read the membership agreement. Accordingly, we reverse.[ 4]

A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040, it is so ordered.

We concur: Worswick, J. Lee, C.J.

Notes:

[ 1] Alternatively, the parties and witnesses refer to the “membership agreement” as “the documents” and “the contract.” We will refer to it as the “membership agreement” throughout this opinion. The liability waiver provision is contained within the membership agreement. Throughout the remainder of this opinion, we will refer to this provision simply as the “waiver provision.”

[ 2] The claims against Brunswick are not at issue in this appeal.

[ 3] Although the inconspicuousness of a waiver provision appears to be a factual inquiry, the Supreme Court in Baker v. City of Seattle, 79 Wn.2d 198, 484 P.2d 405 (1971), determined that a liability waiver provision hidden in the middle of an agreement was so inconspicuous that, as a matter of public policy, it would be unconscionable to enforce it. Subsequent courts of appeal have treated the issue of conspicuousness, as the Baker holding implies, as a matter of law determined by the court. See e.g. Stokes v. Bally’s Pacwest, Inc., 113 Wn.App. 442, 448, 54 P.3d 161 (2002)(“The language is conspicuous, as a matter of law, and it was not unwittingly signed.”).

[ 4] Because we reverse the denial of summary judgment, we do not reach the issue of whether the court abused its discretion in denying the motion for reconsideration.


Putting a saddle on a horse does not turn a livery into a saddle manufacturer. Release stops negligence claims and law stops product liability claims.

A woman who fell off a horse while on a horseback ride. She sued for negligence, which the release stopped, product liability which the law stopped and willful and wanton conduct, which will proceed to trial.

Messer v. Hi Country Stables Corp., 2013 U.S. Dist. LEXIS 2675, 2013 WL 93183

State: Colorado; United States District Court for the District of Colorado

Plaintiff: Alva Messer

Defendant: Hi Country Stables Corporation

Plaintiff Claims: negligence; product liability; and, willful and wanton conduct

Defendant Defenses: Release

Holding: Mostly for defendant, however plaintiff could continue on willful and wanton claims

Year: 2013

Summary

A woman purchased a trail ride from the defendant. On the ride, her saddle slipped, and she fell off the horse. She sued for negligence which the release stopped, product’s liability, which failed because the stable is not a manufacturer and willful and wanton conduct. The court allowed the willful and wanton claim to proceed.

Facts

On July 16, 2009, Plaintiff Alva Messer purchased a guided horseback ride from Hi County Stables. Defendant HCS operates commercial horse-back riding at Glacier Creek Stables in Rocky Mountain National Park (“RMNP”). HCS is one of two equestrian companies owned by Rex Walker. The other equestrian company is Sombrero Ranches, Inc. (“SRI”). Before beginning any guided horseback ride, both companies require customers to sign an exculpatory contract, titled “Release” (hereafter “the Release” or “Release Forms”). The Release Forms for HCS and SRI are identical, except for the name of the company being released from liability. The Release Forms for HCS and SRI are printed in tablets containing 100 tear-away forms per tablet. Once printed, the printing company delivers the tablets to the offices of HCS and SRI.

At the start of the 2009 riding season, one tablet of Release Forms labeled SRI was placed in a box of office supplies for delivery to HCS. For reasons that are unexplained by Defendant, those same Release Forms—which Released SRI from liability—were used by HCS at Glacier Creek Stables on July 16, 2009.

Typically, when customers arrive at HCS, they are informed that they must sign a Release. Amongst other employees at HCS, Dallas Marshall informs customers that they are required to sign the Release and “mark their riding ability.”

When the Messers arrived at HCS on July 16, 2009, Marshall followed her normal practice and informed the Messers of the Release. She also requested that they indicate their riding ability, which Plaintiff did. Following this, and before commencing the guided horseback ride, Plaintiff signed the Release. The Release expressly provides that the customer “understands. . .the specific risks. . .arising from riding a horse. . .and that the [customer] nevertheless intentionally agree[s] to assume these risks.”

After signing the Release, Plaintiff entered the corral where she was assigned her horse before commencing the trail ride. The wrangler who led the guests on Plaintiff’s trail ride was Terry Humphrey.

Plaintiff encountered problems with her saddle during the trail ride which required adjustment by Plaintiff and Humphrey.

At the midway point, the Messer group stopped to take a rest break. Plaintiff encountered further problems with her saddle—including slippage of the saddle to the horse’s right.

Sometime later, as Plaintiff’s horse was stepping down a “rock stair” in the trail, Plaintiff fell off the right side of the horse (the “Incident.”) Plaintiff allegedly sustained serious injuries and economic loss resulting from the Incident.

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

The first issue was the fact the release that was signed did not name the proper defendant. Two stables were owned by the same person, each with different names. Each had a release that named it as the entity being protected. Somehow, a pad of the wrong releases ended up at the defendant, and the release signed by the plaintiff had the name of a different stable on it then where she was riding.

To make changes in a contract like this is called reformation. The court can reform a contract if the party’s intention when signing the contract is the same, and the language does not express the correct intention of the parties.

Reformation of a written instrument is appropriate only when the instrument does not represent the true agreement of the parties and the purpose of reformation is to give effect to the parties’ actual intentions.” Mutual mistake of a contract provides grounds for reformation if the written instrument “does not express the true intent or agreement of the parties.”

A mutual mistake must have occurred for a reformation to be effective.

An “essential prerequisite to a court’s power to reform a contract on the ground of mutual mistake is the existence of a prior agreement that represents the actual expectations of the parties and provides the basis upon which a court orders reformation.”

Because it was obvious that the plaintiff intended to go on a horseback ride with the defendant, where she signed the release, where she paid her money and where she took the ride, the court had no problems correcting the mutual mistake and placing the correct language in the release. This meant placing the name of the defendant in the position of the person to be protected by the release.

Accordingly, the Court finds that there was a mutual mistake at the time the Release was entered into. Mutual intent of the parties was to enter into an agreement whereby HCS would be released from certain claims. This provides the equitable basis to grant the relief. The Court orders that the name “Sombrero Ranches, Inc.” (SRI) be deleted and substituted with “Hi Country Stables” (HCS) in the Release.

The next issue was the validity of the release itself. Under Colorado law, there is a four-part test that a release must pass to be valid.

To determine whether the Release bars Plaintiff’s negligence claim, the Court must consider four factors: (1) the existence of a duty to the public; (2) the nature of the service performed; (3) whether the contract was fairly entered into; and (4) whether the intention of the parties is expressed in clear and unambiguous language.

The first three parts of the test the court quickly covered. Prior Colorado Supreme Court cases held that a recreational activity owes no duty to the public; horseback riding is not an essential service that would bar the release under part two of the test and there was no evidence the release was entered into unfairly.

The fourth test the court also found was valid with this release.

With respect to the fourth factor, the Court looks to the language of the Release to elicit its intent. The Court must determine “whether the intent of the parties was to extinguish liability and whether this intent was clearly and unambiguously expressed.”

It was obvious that the intent of the parties was to decide in advance who would pay for the injuries of any patron of the ride. The release in this case repeatedly used the word negligence throughout the document so the plaintiff knew the purpose of the release. The release also pointed out specific risks of horseback riding that the signor could suffer.

The release was valid to stop the negligence claims.

The next issue was the product liability claim. The plaintiff argued that since the defendant had placed the saddle in the stream of commerce, by placing it on the horse, it was liable for any injuries caused by the defectiveness of the saddle.

The defendant argued that the release stopped this claim also. However, the law in Colorado is that a release cannot stop a product liability claim.

That case held that an agreement releasing “a manufacturer from strict products liability for personal injury, in exchange for nothing more than an individual consumer’s right to have or use the product, necessarily violates the public policy of this jurisdiction and is void.”

The court found the product liability claim was not barred by the release. However, the court did hold that just placing a saddle on a horse for a trail ride does not create a product liability claim for defective equipment in Colorado. Horseback riding is a service; it is not a manufacturing process. Placing a saddle on the horse does not change that. The horse-riding service could not exist (for 99.9% of the people) without the saddle.

Plaintiff entered into a contract for a guided five-hour horseback ride through RMNP. This service primarily relied upon a horse (which is not a product) and a saddle (which incidental to that service). Without a product, the product liability claims cannot succeed.

The saddle was not an item manufactured by the defendant; it was incidental to the service being offered by the defendant and so the product liability claim failed. Finally, the defendant was not a manufacturer of saddles.

The final issues were the claims for willful and wanton conduct. A release cannot bar claims that are greater than negligence, willful and wanton conduct or gross negligence.

Willful and wanton conduct claims are mental state claims. Meaning the claim goes to the actions, the mental state of the defendant in ignoring or creating the issue. This require conscious thought, not simple failure. “…willful and wanton conduct requires a mental state “consonant with purpose, intent and voluntary choice.”

The court then allowed the plaintiffs claims based on willful and wanton conduct of the defendant to proceed to trial.

So Now What?

First, there is a need to look at the product liability claim. Not in the fact that most recreation businesses are manufacturing items, but because they are repairing them. Although you can find outfitter made items such as old raft frames, most items used now days are manufactured by a third party. However, many outfitters and recreation businesses do repair items.

Repairing an item may bring the outfitter into the trial under a product liability claim in many states. The outfitter by making repairs has entered into the stream of commerce between the manufacturer and the end user. The outfitter is no longer a user of the product, but a manufacturer of the product.

Remember there are some items you should never repair or that may be illegal to repair.

PFD’s cannot be repaired by law. Climbing harnesses or any other item where the failure would result in catastrophic injury or death or where the manufacturing process is protected by statute or standard should never be repaired.

The reformation issue was stupid. The cost of printing one set of releases on tan paper and the other on white would have eliminated this problem. Other examples would be putting the page numbers on the bottom right of one release and the center or top of the other. Locating the logo of the defendant in a different location on each release would have worked. Anything to that any employee can recognize that they are using the wrong release.

Some day there will be a horseback riding case that does not involve a slipping saddle. Why there still are, is a mystery to me, and I grew up with horses.

What do you think? Leave a comment.

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Reed v. Union Resort, LLC, 2018 U.S. Dist. LEXIS 225856, 2018 WL 8332583

Reed v. Union Resort, LLC, 2018 U.S. Dist. LEXIS 225856, 2018 WL 8332583

United States District Court for the District of South Dakota, Western Division

November 15, 2018, Decided; November 15, 2018, Filed

5:17-CV-05047-JLV

Reporter

Brad Reed, Individually and as Joint Limited Conservators of I.R., a Minor; and Tara Reed, Individually and as Joint Limited Conservators of I.R., a Minor; Plaintiffs, vs. Union Resort, LLC, dba Mystic Miner, Defendant.

Subsequent History: Objection overruled by, Adopted by, Summary judgment granted by, in part, Summary judgment denied by, in part Reed v. Union Resort, LLC, 2019 U.S. Dist. LEXIS 49327 (D.S.D., Mar. 25, 2019)

Counsel:  [*1] For Brad Reed, Individually and as Joint Limited Conservators of I.R., a minor, other, I.R., Tara Reed, Individually and as Joint Limited Conservators of I.R., a minor, other, I.R., Plaintiffs: Kenneth E. Barker, LEAD ATTORNEY, Barker Wilson Law Firm, LLP, Belle Fourche, SD.

For Union Resort, LLC, doing business as Mystic Miner, Defendant: Shane E. Eden, LEAD ATTORNEY, Davenport, Evans, Hurwitz & Smith, LLP, Sioux Falls, SD.

Judges: VERONICA L. DUFFY, United States Magistrate Judge.

Opinion by: VERONICA L. DUFFY

Opinion

REPORT AND RECOMMENDATION

INTRODUCTION

This matter is before the court on the amended complaint of Brad and Tara Reed as conservators of I.R., their minor daughter. See Docket No. 16. The Reeds allege claims of negligence and gross negligence against defendant Union Resort, LLC, dba Mystic Miner (defendant) arising out of a tubing accident at defendant’s ski resort. Id. This matter rests on the court’s diversity jurisdiction, 28 U.S.C. § 1332.

Defendant has now filed a motion for summary judgment. See Docket No. 21. The Reeds oppose the motion. See Docket No. 30. The motion was referred to this magistrate judge for a recommended disposition pursuant to 28 U.S.C. § 636(b)(1)(B), the order of referral dated November 11, 2018 (Doc. 42), and the [*2]  October 16, 2014, standing order of the Honorable Jeffrey L. Viken, Chief United States District Judge.

FACTS

Defendant filed a statement of undisputed material facts, Docket No. 22, to which the Reeds have responded, Docket No. 31. The following facts have been drawn from those pleadings with disputes or discrepancies as noted.

On March 13, 2015, Brad and Tara Reed brought their children to the defendant’s resort near Lead, South Dakota, for an afternoon of recreational snow tubing.1 The resort was owned and operated by Union Resort, LLC, dba Mystic Miner. Among the Reeds’ children with them that day was seven-year-old I.R. Accompanying the Reeds were another couple and Alex, a social worker from the Philippines.

Upon arriving shortly before noon, the Reed party entered the lodge area where customers are required to check in and purchase admission tickets for the resort. The Reeds purchased snow tubing day passes for themselves and their children, including I.R. As a condition of allowing I.R. to use the resort, Union required the Reeds to agree to a written release of liability. The Reeds signed the release and printed the names of each of their children, including I.R., as participants. [*3] 

The Reeds understood the document was a release of liability agreement and that, by signing, they would be relinquishing certain unspecified rights. They did not ask any questions about the release. The release informed resort participants that tubing activities are extremely hazardous and can result in personal injury. The Reeds understood that tubing carried with it a degree of risk, including risk of trauma to the head, and that I.R. would be exposed to this risk.

After signing the release and paying the admission fee, the Reeds and their kids received individual tickets for the tube park. Those tickets included additional warnings.

At the resort, there are numerous bright red signs that provide instructions and warnings to participants. Among the messages on some of the signs was a warning that collisions with other tubers was one of the dangers of tubing. Other signs instructed the tubers to follow the attendant’s instructions and to wait for the attendant’s signal before starting [down the tube run]. The Reeds do not recall whether they saw or read any of these signs.

The Reeds were directed to select tubes from the resort’s selection of tubes, which they did. Defendant had approximately [*4]  50 to 70 tubes in inventory at the time, but there is no evidence how many of these tubes had already been selected by prior guests. No employee of defendant selected the tubes for the Reeds. Several defendant employees testified at their depositions that it was a practice at the resort to leave tubes with tears in the bottoms in circulation for guests to use. The employees explained that such tubes were slower and slower equated to safer in their minds.

During the Reeds’ stay at the resort, they went down the tube runs approximately 15 to 20 times. Two of the four tube runs at the resort were open that day. During the Reeds’ runs, there were two defendant employees at the bottom of the tube runs assisting guests with the tow rope (which towed guests to the top of the run).

On approximately two of the Reeds’ 15-20 tubing runs, there was a young man at the top of the tube runs who also appeared to be a resort employee with a radio in his possession. However, the young man never monitored the tube runs, never gave instructions to tubers, and never staged tubers going down the tube runs. “Staging” means controlling the entry of guests onto the tube runs to ensure that the prior tuber has [*5]  finished the run and cleared the area before the next tuber is allowed to begin his or her descent. There was no staging and, instead, tubers decided themselves when to begin their descent, a situation Brad Reed described as a “free-for-all.”

At approximately 2 p.m., the Reeds decided to take one last run down the tube runs before leaving the resort. Up to this point, the Reeds had experienced no concerns or incidents. Up to this final run, I.R. had always completed her run down the slope as part of a group or with one of her parents. On the final run, she asked to be allowed to go down the tube run by herself, to which her parents agreed. Mrs. Reed told I.R. they would go down the run together, parallel to each other in each of the two open tube runs. At this point, Alex was directly behind I.R. in line for the same tube lane. Mr. Reed was behind Alex in the same line.

Once both lanes were clear, Mrs. Reed and I.R. began their descents. Mrs. Reed went all the way down the run, but I.R.’s tube stopped approximately 3/4 of the way down the slope. While I.R. was stopped, Alex began her descent before I.R. cleared the lane. When Alex’s tube reached I.R.’s tube, they collided. No defendant [*6]  employee told Alex to begin her descent, but no defendant employee was present at the top of the run to tell her, instruct her, or prevent her from beginning her descent until I.R. cleared the lane.

From the top of the slope, Mr. Reed testified Alex should have been able to see I.R. had not cleared the lane had Alex been paying attention. See Docket No. 25-5 at p. 7 (depo. pp. 25-26). Mr. Reed himself was able to observe the collision from his vantage point at the top of the slope. Id. at p. 6 (depo. pp. 22-24).2

After the accident, the Reeds observed an approximately 8-inch hole in the bottom of I.R.’s tube that had filled with snow. Defendant asserts it was its policy to stow the tubes under the deck each night and to pull them out the next day for guests’ use. Defendant asserts employees were directed to observe the tubes for significant tears or defects and to remove defective tubes during this process. However, several defendant employees testified they left tubes with tears in their bottoms in rotation for guest use because the tears would slow the tuber down as they descended the slope. Employees believed a slower descent was a safer descent.

If a lightweight child descended the slope with [*7]  a tube with a tear in it, sometimes the tube would stop mid-way down the slope and a defendant employee would have to walk up the slope to retrieve the child. In such an instance, the defendant employee at the bottom of the slope would radio the employee at the top and tell them to stop sending guests down the slope until the child was retrieved and taken to the bottom.

No photograph was taken of I.R.’s tube at the beginning of the day, after the accident, or at any other time on the day of the accident. It is unknown if the tear in the bottom of her tube was there from the start of the day or whether the tear occurred during the Reeds’ use of the tube that day. The Reeds mixed and mingled the various tubes they checked out, so several members of the Reeds’ group could have used the accident tube at various times of the day.

The accident tube was the only tube checked out by the Reed group that had a tear in it. The Reeds did not notice the tear until after I.R.’s injury. The Reeds did not inform anyone at the resort about the tear in the tube after the accident occurred. There is no evidence that any defendant employee had specific knowledge that the Reeds had checked out a tube with [*8]  a tear in it on the day of the accident, though defendant employees had general knowledge that such tubes were often retained in inventory because they were perceived to be “safer” because they were slower.

From the beginning of the 2010-11 season through the end of the 2014-15 season, defendant had incident reports of 17 collisions of tubers. During that same time frame, there were 72 total incident reports.3 Several of these collisions between tubers occurred within a few weeks and, in two examples, a few days, of I.R.’s collision. Specifically, there were 5 incident reports involving collisions between tubers going down the tube lane between December 30, 2014, and February 27, 2015. None of defendant’s incident reports record whether a hole in a tube contributed to the incident.

Defendant maintains that it had a proper protocol of having at least one employee at the top of the tube run and one employee at the bottom of the tube run at all times. The employee at the top of the tube run was supposed to “stage” the tubers going down. The employee at the bottom of the tube run would retrieve items lost by tubers going down the slope (hats, mittens, etc.) and also retrieve guests whose [*9]  tubes stopped without fully descending the slope.

The Reeds assert defendant was chronically understaffed and that defendant made a deliberate decision not to station an employee at the top of the tube run the day of I.R.’s accident. Defendant asserts the Reeds have no evidence to support the assertion that the decision not to station an employee at the top of the tube run was a deliberate decision.

DISCUSSION

A. Summary Judgment Standard

Under Rule 56(a) of the Federal Rules of Civil Procedure, summary judgment is appropriate where the moving party “shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).

The court must view the facts, and inferences from those facts, in the light most favorable to the nonmoving party. See Matsushita Elec. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986) (citing United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S. Ct. 993, 8 L. Ed. 2d 176 (1962)); Helton v. Southland Racing Corp., 600 F.3d 954, 957 (8th Cir. 2010) (per curiam). Summary judgment will not lie if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986); Allison v. Flexway Trucking, Inc., 28 F.3d 64, 66 (8th Cir. 1994).

The burden is placed on the moving party to establish both the absence of any genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). Once the movant has met its burden, the nonmoving party may not simply rest on the allegations in the pleadings, but [*10]  must set forth specific facts, by affidavit or other evidence, showing that a genuine issue of material fact exists. Anderson, 477 U.S. at 256; Fed. R. Civ. P. 56(e) (each party must properly support its own assertions of fact and properly address the opposing party’s assertions of fact, as required by Rule 56(c)).

The underlying substantive law identifies which facts are “material” for purposes of a motion for summary judgment. Anderson, 477 U.S. at 248. “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Id. (citing 10A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice And Procedure § 2725, at 93-95 (3d ed. 1983)). “[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Id. at 247-48.

Essentially, the availability of summary judgment turns on whether a proper jury question is presented: “The inquiry performed is the threshold inquiry of determining whether there is the need for a trial—whether, in other words, there are any genuine [*11]  factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.” Id. at 250.

B. Does the Release Signed by the Reeds Bar Their Claims?

Defendant’s first argument in favor of its summary judgment motion is that the clear and plain language of the release signed by the Reeds bars their claims and that there is no overriding public policy that serves to neutralize the release.

South Dakota law4 provides that a valid release of liability bars claims for ordinary negligence, but does not bar claims for gross or willful negligence or recklessness. Holzer v. Dakota Speedway, Inc., 2000 SD 65, 610 N.W.2d 787, 792-93 (S.D. 2000). The Reeds do not argue that the release was invalid in any way or that the activity I.R. was engaged in when she was injured was outside the scope of the release. In fact, the Reeds concede that their first claim in their amended complaint for ordinary negligence is barred by defendant’s release. See Docket No. 30 at p. 5. Accordingly, the court recommends that defendant’s motion for summary judgment as to the Reeds’ claim for ordinary negligence, count one of the amended complaint, be granted.

C. Are There Material Factual Disputes as to Gross Negligence?

Defendant argues the facts alleged [*12]  by the Reeds, even if true, allege a claim for ordinary negligence only, not gross negligence. Thus, since ordinary negligence is barred by the release, defendant argues it should be granted summary judgment on the Reeds’ gross negligence claim too.

Under South Dakota law, the phrase “gross negligence” is synonymous with the phrase “willful and wanton misconduct.” Fischer v. City of Sioux Falls, 919 N.W.2d 211, 2018 SD 71, 2018 WL 4779267 at *2 (S.D., 2018). Both phrases refer “to a category of tort that is different in kind and characteristics than negligence.” Id. Negligence occurs when one acts with an “unreasonable risk of harm to another.” Id. (citing W. Page Keeton et al., Prosser & Keeton on the Law of Torts, § 34, at 212 (5th ed. 1984)). Willful and wanton misconduct requires a risk of harm that is “substantially greater than that which is necessary to make the conduct negligent.” Id. The threatened harm “must be an easily perceptible danger of death or substantial physical harm.” Id. (all quotes from Fischer cleaned up).

In addition, proof of a negligence claim focuses on the ordinary standard of care, while a gross negligence claim focuses on the defendant’s mental state. Id. 2018 SD 71, [WL] at *3. A defendant acts willfully and wantonly when it knows or has reason to know at the time of its actions [*13]  of the dire risk and proceeds without concern for the safety of others. Id. The standard does not require proof of intent to harm, but it does “partake to some appreciable extent … of the nature of a deliberate and intentional wrong.” Id. Gross negligence requires “an affirmatively reckless state of mind.” Id. There must be “a conscious realization that a serious physical injury was a probable, as distinguished from a possible (ordinary negligence), result of such conduct.” Id. (all quotes from Fischer cleaned up).

The evidence must show more than “mere mistake, inadvertence, or inattention . . . there need not be an affirmative wish to injure another, but, instead, a willingness to injure another.” Gabriel v. Bauman, 2014 SD 30, 847 N.W.2d 537, 541 (S.D. 2014)). Generally, whether the facts constitute gross negligence is a question of fact “if reasonable minds might differ in interpreting the facts in arriving at different conclusions on whether the defendant was willful, wanton, or reckless.” Id. at 542. “Because willfulness, wantonness, or recklessness is almost never admitted, and can be proved only by the conduct and the circumstances, an objective standard must of necessity in practice be applied. Id. at 542-43.

Summarizing the above case law, gross negligence [*14]  is distinguished from ordinary negligence by two factors. The risk of harm must be greater for gross negligence—whereas under ordinary negligence, the risk of harm can be anything from negligible harm to death, the risk of harm for gross negligence must be death or serious harm. Fischer, 2018 SD 71, 2018 WL 4779267 at *2. Secondly, the likelihood that harm will come about, phrased in terms of the defendant’s state of mind, must be greater. For example, if there is a 10 percent chance some harm will happen and the defendant fails to take steps to ensure that harm does not come about, he is merely negligent. If there is an 85 percent chance serious harm or death will happen and the defendant fails to take steps to ensure the harm does not occur, he has acted willfully and wantonly or with gross negligence.

The Reeds posit three facts in support of their assertion the defendant in this case acted grossly negligent (or willfully and wantonly) with regard to I.R. First, the defendant had a practice of leaving tubes with tears in the canvas bottoms in rotation for guests to use because the torn tubes were slower and, therefore, in the eyes of defendant’s employees, safer. Second, the defendant knew the importance of staging—having [*15]  an employee at the top of the tube run to meter the guests as they descended the slope so that one guest could clear the run before the next guest began descending—but made a deliberate decision not to station an employee at the top of the tube run on the day of I.R.’s accident. And, finally, the existence of prior collisions on the tube run put the defendant on notice of the likelihood of harm.

Neither party speaks to the magnitude of the harm which, as discussed above, is one of the two factors distinguishing ordinary negligence from gross negligence. The defendant does not cite facts or circumstances to show that the prior collisions were minor bump-and-bruise types of encounters. The Reeds do not cite facts or circumstances to show the prior collisions resulted in concussions, closed head injuries, broken bones, surgeries or hospitalizations. The Reeds have supported their assertion that I.R.’s injuries were sufficiently serious—a fractured skull–something defendant does not dispute. Because the moving party has the burden, the court makes all inferences in favor of the nonmoving party. Accordingly, the court infers that previous accidents were sufficiently severe in nature to [*16]  satisfy the standard required for gross negligence.

Likewise, with regard to the number of prior incidents, neither party has placed into the record what the total number of tubers was during the period of time covered by the incidents. This fact goes to the likelihood of a collision—for gross negligence, there must be a greater probability of harm occurring than is the case with ordinary negligence. If 17 collisions occurred between fall of 2010 and March 15, 2015, and there were 5,000 tubers during that time, the number of prior accidents takes on one type of significance. But the significance of the number of prior accidents is different if the total number of tubers during that time frame is 100, 300, or even 500. There is a significantly bigger risk of harm the smaller the total number of tubers. Although the defendant alleges there were “thousands” of tubers, it has not supported that assertion with citation to an affidavit, deposition, or authenticated document. Again, there is a lack of evidence.

Also, neither party describes the scope of defendant’s incident reports. Do they encompass all kinds of incidents—those attributable to conditions on the slopes within defendant’s control [*17]  as well as incidents attributable to factors not within defendant’s control? Do they encompass heart attacks and strokes as well as collisions? Do the reports include drunken brawls between guests as well as injuries inflicted when a tow bar snaps?

Furthermore, is there any evidence suggesting that not all collisions at defendant’s resort are documented in incident reports? Are the incident reports the tip of the iceberg—or are they truly representative of all injuries occurring at defendant’s resort?

Finally, defendant does not dispute that no employee was stationed at the top of the tube run at the time of I.R.’s accident. The Reeds assert that defendant was “chronically understaffed” and that defendant made a “deliberate decision” not to place an employee at the top of the tube run that day. The Reeds have amply supported their assertion that defendant was chronically understaffed, with the result that positions that should have been filled by employees were left unattended. See Docket Nos. 33-4, 33-5, & 33-8. The Reeds also supplied testimony that, when there were not enough employees, the defendant prioritized putting an employee at the bottom of the tube slope rather than at the [*18]  top of the slope. See Docket No. 33-4 at p. 5 (depo p. 20). From these two facts, the Reeds infer that defendant made a “deliberate decision” the day of the accident not to place an employee at the top of the tube slope to stage the tubers.

Defendant disputes that it made a “deliberate decision” not to have an employee staging the tubers that day. Defendant’s disagreement with the Reeds’ assertion is based solely on the fact that they do not have testimony from any witness stating outright that a calculated decision was made. Defendant seems to assert that the Reeds may not rely upon an inference, but must have affirmative evidence of the fact a “deliberate decision” was made.

The court makes two observations. Under the law of gross negligence, South Dakota has recognized a plaintiff will rarely have direct evidence of the defendant’s state of mind. Gabriel, 847 N.W.2d at 542-43. Rather, state of mind must be inferred from the circumstances. Id. Also, under the law of summary judgment, all inferences from the facts must be made in favor of the nonmoving party. Matsushita Elec. Co., 475 U.S. at 587-88. Both sources of law, then, support taking the Reeds’ view of the inference to be drawn from the fact that defendant was chronically understaffed and did [*19]  not have an employee stationed at the top of the tube run at the time of I.R.’s accident.

Defendant attempts to eliminate a genuine issue of fact as to the presence of a staging employee by asserting that there was in fact an employee at the top of the tube hill with a radio. See Docket No. 34 at p. 6. In support of this assertion of fact, defendant cites Mr. and Mrs. Reeds’ depositions and argues they cannot claim a version of facts more favorable than their own testimony, an old chestnut of South Dakota Law.

Reading the Reeds’ depositions, however, leads one to conclude defendant’s assertion is, if not outright untrue, certainly misleading. Both Mr. and Mrs. Reed testified no one was at the top of the hill staging the tubers at the time of I.R.’s accident. Docket No. 27-1 at p. 10 (depo. p. 30); Docket No. 27-5 at p. 7 (depo. p. 25). Prior to the accident, both the Reeds had observed a young man with a radio they assumed was defendant’s employee at the top of the hill during one or two of the Reed party’s previous 15-20 tube runs. However, the young man never provided instruction to the tubers about when to go down the slope—he was not staging the tubers. Docket No. 27-1 at p. 10 (depo. [*20]  pp. 39-40). Thus, the Reeds have sustained their assertion of fact that defendant had no employee stationed at the top of the tube hill to stage tubers at the time of I.R.’s accident.

Defendant’s motion is decided with resort to two veins of law. First, the law applicable to summary judgment. As the movant, defendant has the burden to show that there are no genuine disputes of material fact and that, based upon those undisputed facts, it is entitled to judgment as a matter of law. All of the absences of crucial fact detailed by the court above cut against defendant as the moving party. Furthermore, all of the inferences from the facts that are present in the record must be drawn in favor of the Reeds. Applying those standards to the issue before the court, the conclusion is inescapable that there are genuine issues of material fact existing which prevent summary judgment in defendant’s favor.

The second vein of law which comes into play is the dictate of South Dakota law that, ordinarily, questions of whether a defendant acted with gross negligence are questions of fact for the jury if reasonable minds could differ as to the inferences to draw from the known facts. Gabriel, 847 N.W.2d at 542. That is the situation [*21]  here. The court recommends that defendant’s motion for summary judgment on the Reeds’ gross negligence claim be denied.

D. Are There Material Factual Disputes as to Assumption of the Risk?

Defendant’s final argument in favor of its summary judgment motion is that the Reeds assumed the risk of their daughter’s accident as a matter of law, thereby relieving defendant of any liability. The court addresses the first question apparent by defendant’s argument: whether assumption of the risk is even a defense to a claim of gross negligence. As legal authority for its position, defendant cites only the Restatement (Second) of Torts 496A, cmt. d (1965), and a dissenting opinion in Barger for Wares v. Cox, 372 N.W.2d 161, 170-71 (S.D. 1985) (Wuest, J., dissenting). See Defendant’s Brief, Docket No. 23 at pp. 29-30. Neither of these authorities represent binding South Dakota law.

The Reeds in their brief do not address the issue of whether assumption of the risk is a defense to a claim of gross negligence. They argue only that assumption of the risk is a quintessential issue of fact for the jury. See Docket No. 30 at pp. 13-14.

In the Holzer case discussed previously, the plaintiff signed defendant’s release of liability form which defendant called an “assumption of the risk” form. Holzer, 610 N.W.2d at 790. The court held [*22]  in that case that liability releases only serve to protect defendants from claims of ordinary negligence, not from claims of gross negligence. Id. at 793. However, the title the defendant chose to give its release form is not dispositive of the question in this case.

The South Dakota Supreme Court has said that when a defendant’s actions are merely negligent, the defense of contributory negligence applies. But when the defendant’s conduct is willful and wanton, the defense of contributory negligence does not apply. Carlson v. Johnke, 57 S.D. 544, 234 N.W. 25, 27-28 (S.D. 1931), overruled on other grounds Wittstruck v. Lee, 62 S.D. 290, 252 N.W. 874, 877 (S.D. 1934) (clarifying that it did not adopt the doctrine of comparative negligence in Johnke).

In a dissenting opinion in another case, Justice Henderson stated that while assumption of the risk was a defense to ordinary negligence, the plaintiff would nonetheless have recourse for willful or wanton acts of a defendant. Johnson v. Rapid City Softball Ass’n. , 514 N.W.2d 693, 703 (S.D. 1994) (Henderson, J., dissenting). See Rantapaa v. Black Hills Chair Lift Co., 2001 SD 111, 633 N.W.2d 196, 204 (S.D. 2001) (assumption of the risk is an affirmative defense to an ordinary negligence claim).

The court has found no South Dakota case directly on point addressing whether the defense of assumption of the risk applies to grossly negligent or willful and wanton conduct. Defendant cites § 496A, comment d, of the Restatement (Second) of Torts for the proposition that the defense is [*23]  available here. The section cited stands for the proposition that assumption of the risk is a defense to both ordinary negligence and to reckless conduct. The section does not address gross negligence or willful and wanton conduct. However, it is true that the South Dakota Supreme Court has, at times, used the word “reckless” interchangeably with “gross negligence” and “willful and wanton.”

If assumption of the risk is a defense to a claim of gross negligence, it is a subjective standard. Duda v. Phatty McGees, Inc., 2008 SD 115, 758 N.W.2d 754, 758 (S.D. 2008). Defendant has the burden to prove that “the particular plaintiff in fact sees, knows, understands and appreciates” the specific risk that caused the injury. Id. The defendant must prove three elements: (1) the plaintiff had actual or constructive knowledge of the risk; (2) the plaintiff appreciated its character; and (3) the plaintiff voluntarily accepted the risk, with the time, knowledge, and experience to make an intelligent choice. Id. “A person is deemed to have appreciated the risk if it is the type of risk that no adult of average intelligence can deny.” Id. (quoting Westover v. East River Elec. Power Coop., Inc., 488 N.W.2d 892, 901 (S.D. 1992)) (cleaned up).

The Restatement states that a plaintiff who knows generally of a danger does not necessarily assume the risk if [*24]  the danger appears to be slight or negligible. See
Restatement (Second) Torts §496D, cmt. b. The Restatement also echoes what South Dakota law establishes: because the standard for assumption of the risk is a subjective one based on whether the plaintiff knows of the existence of the risk as well as understands its magnitude and unreasonable character, the question of assumption of the risk is almost always a question of fact for the jury to decide. Id.; Ray v. Downes, 1998 SD 40, 576 N.W.2d 896, 900 (S.D. 1998).

Here, the Reeds have established that neither they nor their children had ever been tubing before the day they visited defendant’s resort. See Docket No. 27-1 at p.3 (depo. p. 12). They anticipated that tubing at defendant’s resort would be safe, fun and would build family memories. See Docket No. 33-1 at p. 103. Furthermore, there is no evidence produced by defendant showing that the Reeds anticipated, understood, and accepted the risk that defendant would provide no employee at the top of the tube run to stage the tubers—contrary to defendant’s own policy and its prominent signage at the resort (i.e. follow attendant’s instructions when going down the tube run).

The defense of assumption of the risk is a subjective one. There are material issues of fact as to what the [*25]  Reeds knew and appreciated in terms of the risk they and I.R. would encounter when tubing at defendant’s resort. Assuming that the defense applies at all to a claim of gross negligence, the court concludes summary judgment is inappropriate on this record.

Conclusion

Based on the foregoing facts, law and analysis, this magistrate judge respectfully recommends granting in part and denying in part defendant’s motion for summary judgment, Docket No. 21. Specifically, the court recommends defendant’s motion should be granted as to plaintiff’s claim for ordinary negligence, but recommends defendant’s motion should be denied as to plaintiff’s claim for gross negligence.

Notice To Parties

The parties have fourteen (14) days after service of this Report and Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1), unless an extension of time for good cause is obtained. Failure to file timely objections will result in the waiver of the right to appeal questions of fact. Objections must be timely and specific in order to require de novo review by the District Court. Thompson v. Nix, 897 F.2d 356 (8th Cir. 1990); Nash v. Black, 781 F.2d 665 (8th Cir. 1986).

DATED November 15, 2018.

BY THE COURT:

/s/ Veronica L. Duffy

VERONICA L. DUFFY

United States Magistrate Judge


Federal District Court applying South Dakota law finds release was ineffective in stopping claims for injury that did not occur because of the risk the plaintiff was anticipating.

The plaintiff in this case signed a release to hunt, but was injured by an ATV waiting to hunt. As such the release did not apply.

Wimmer v. Top Gun Guide Serv., 421 F. Supp. 3d 849, 2019 U.S. Dist. LEXIS 185888, 2019 WL 5558308

State: South Dakota

Plaintiff: Anthony Wimmer

Defendant: Top Gun Guide Service, Inc., John Does 1-5

Plaintiff Claims: Negligence

Defendant Defenses: Release

Holding: for the Plaintiff

Year: 2019

Summary

A release must be written to cover all the risks your guests could suffer. Here the release covered hunting and did not cover being hit by an ATV when the plaintiff was not hunting. Write your release to inform your participants and to provide protection for you from all fronts.

Facts

This case arose from injuries that plaintiff Anthony Wimmer sustained while on a hunting trip hosted by defendant Top Gun near Aberdeen, South Dakota in April of 2015. Mr. Wimmer is a California resident and Top Gun is a Minnesota corporation. Id. On or about April 9, 2015, Mr. Wimmer arrived in Aberdeen, though he did not hunt on that day. At some point on April 9th, Mr. Wimmer signed a waiver purporting to release Top Gun from liability arising from the hunting trip.

The parties agree that in his deposition Mr. Wimmer testified that he read the release before signing it and that he did not disagree with anything contained therein. Mr. Wimmer also agreed in his deposition that hunting and fishing is a dangerous activity.

On April 10th, Mr. Wimmer arrived at the hunting site and began setting up hunting decoys. Shortly after having finished setting up the decoys, Mr. Wimmer was standing in the field where the hunt was to take place when he was struck from behind “by either an [all terrain vehicle (ATV)] or sled.” The sled was being towed behind the ATV. Id. The ATV was being operated by a Top Gun guide.

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

The plaintiff argued the normal arguments on why the release should fail. The main one was the release was written specific for the activity of and the risks created by hunting and fishing and at the time of the accident the plaintiff was doing neither of those things. Therefore, the release did not apply, his injuries were outside of the scope of the language of the release.

Plaintiff argues that he had no meaningful opportunity to negotiate the terms of the waiver and so it must be viewed as an “anticipatory release and contract of adhesion, which should be viewed with a skeptical and critical eye,” and any ambiguities should be construed against the drafter. Plaintiff argues that the waiver, by its terms, only applies to the limited activities of hunting and fishing. Plaintiff argues that his are not hunting injuries because, at the time of the accident, he had already finished setting up the decoys and was merely standing in the field waiting to be told what he should do next. Plaintiff urges that such activity should not be considered hunting.

The defendant argued the release was broad and covered the injury the plaintiff sustained and countered the plaintiff’s arguments.

Top Gun’s argument relies on the liability waiver being found to encompass the harm at issue in this case. Defendant then proceeds to argue that the waiver is valid and its enforcement would not contravene South Dakota’s public policy. Defendant argues that releases involving voluntary recreational activities have withstood attacks that they are contrary to South Dakota’s public policy many times before; only an attempted waiver of conduct rising to the level of willful negligence or intentional tort would contravene the state’s public policy. Because Mr. Wimmer does not allege willful negligence or any intentional torts, defendant argues that his claims must fail.

The court then looked at the law of South Dakota where the accident happened and, which law was to be applied, South Dakota law.

Under South Dakota law, a waiver of liability is contractual in nature and is governed by contract law. When interpreting a contract, “[t]he goal . . . is to see that the mutual intent of the parties is carried into effect.” Courts look to the language of the contract to determine the intent of the parties, and afford contractual terms their “plain and ordinary meaning,” “When the meaning of contractual language is plain and unambiguous, construction is not necessary” because the “intent of the parties can be derived from within the four corners of the contract.” (“When the words of a contract are clear and explicit and lead to no absurd consequences, the search for the parties’ common intent is at an end.”).

What most non-lawyers do not understand is a contract must be interrupted solely by the words in the contract. As lawyers say within the four corners of the document. Statements (parol evidence) said before or after the signing of the contract are inadmissible to interpret the contract. The exception to this rule is if the contract is determined by the court to be ambiguous, then evidence outside of the terms of the agreement can be introduced to explain the language of the contract. But only to explain the ambiguous language of the contract.

When a contract is found to be ambiguous, however, “parol evidence is admissible to explain the contract but inadmissible to vary or add terms to the contract.” A contract is not rendered ambiguous merely because the parties now disagree as to their intent at the time of contracting. “Instead, ‘a contract is ambiguous only when it is capable of more than one meaning when viewed objectively by a reasonably intelligent person who has examined the context of the entire integrated agreement.'”

The court found that the release was not ambiguous so no other evidence could be introduced to explain the meaning of the release.

The release at issue in the instant case is not ambiguous. Although it must be interpreted and read in a common sense manner. The release, by its terms, covers “all claims, demands, or causes of action, which are in any way connected with [plaintiffs] participation in this activity or [plaintiff’s] use of [Top Gun] equipment…”

The plaintiff and the defendant both argued the issues as they needed. The plaintiff stated he was standing around the, and the defendant argued the plaintiff was hunting. However, the court found the plaintiff was not hunting by law. “As a matter of law, plaintiff could not have legally been pursuing waterfowl because the accident happened long before legal shooting time.”

Under South Dakota law, hunting cannot begin until thirty minutes before sunrise. Since the accident happened several hours before sunrise, the plaintiff was not hunting.

This accident could not, as a matter of law, have been a part of legal hunting. In South Dakota, a hunter may not shoot waterfowl until one half hour before sunrise. At the time of the accident, all preparations for hunting had been completed. The parties were in a waiting period. Instead, plaintiff was struck by a motor vehicle. The fact that plaintiff is claimed to be hunting at the time he was struck by the ATV is irrelevant because being struck by an ATV is not a harm arising out of hunting, especially long before sunrise.

Therefore, the release was not written to cover the accident that occurred to the plaintiff.

The court also added that the release did not cover motor vehicle accidents, which is what occurred to the plaintiff. (Any accident that is caused by something with an engine and tires, the courts usually interpret that as a automobile accident and apply automobile law, on or off road.)

The court then looked at releases and how they are interpreted with respect to high-risk activities under South Dakota law.

First, the more inherently dangerous or risky the recreational activity, the more likely that an anticipatory release will be held valid. That is, individuals who engage in activities like mountain climbing, race car driving, parachute jumping, and the like, are more likely to be held to have an understanding of the risky nature of their chosen activity.

Second, releases are deemed more acceptable when they are written on a separate sheet of paper. Id. It is the first line of reasoning that is most relevant to the instant analysis.

The court stated that if you undertake a high-risk activity you cannot sue for your injuries.

The first line of reasoning recognizes that individuals who voluntarily engage in a particularly dangerous activity for recreational purposes must accept a certain amount of risk that is inherent in said activity. That is, when an individual chooses to go skydiving, signs a release with a vendor providing such services, and is injured while hurtling to the earth, he cannot then sue in contravention of that release. Hunting is likewise a dangerous activity; the hunter voluntarily exposes himself to all the dangers of the firearms enthusiast as well as those of the outdoorsman. It is agreed that the release in this case covers liability arising out plaintiff’s participation in the activity of hunting. However, plaintiff’s participation in the hunt did not cause his injury.

Summing the issues up, the court made the statement that in South Dakota, the Supreme Court looked at the validity of the release as it relates to the activity the release was supposed to cover.

Each case the Supreme Court of South Dakota has considered relating to the application of a release from liability has involved harm that arose out of the activity for which liability was waived.

However, here the plaintiff was not undertaking a high-risk recreational activity. He was standing in a field.

In the instant case, plaintiff’s injury did not arise from his participation in the hunt. He was not accidentally shot by a fellow hunter; he did not strain his back while placing a decoy, nor did he twist his ankle while standing around waiting to be told what to do next. Instead, plaintiff was struck from behind by a motor vehicle at a time before legal hunting could commence, something separate and apart from his participation in the hunt.

The release was signed so the plaintiff could hunt. He was not injured hunting, and the release was not written in a way to cover the risks the plaintiff encountered standing in a field.

The release was thrown out by the court and the plaintiff was allowed to continue his lawsuit.

So Now What?

Too many releases are written to cover the risks of the specific activity, hunting, climbing, rafting, etc. Yet accidents occur in the parking lot, on the way to the activity and just standing around waiting for kayaks to be unloaded, belays to be set up or the guides to get organized.

Make sure your release is broad enough to cover all the risks your clients will encounter during the activity.

At the same time, don’t let an idiot drive an ATV and if people are going to be standing around in the dark, put a bicycle light on them so you can find them.

What do you think? Leave a comment.

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Messer v. Hi Country Stables Corp., 2013 U.S. Dist. LEXIS 2675, 2013 WL 93183

Messer v. Hi Country Stables Corp., 2013 U.S. Dist. LEXIS 2675, 2013 WL 93183

United States District Court for the District of Colorado

January 8, 2013, Decided; January 8, 2013, Filed

Civil Action No. 11-cv-01500-WJM-MJW

Reporter

2013 U.S. Dist. LEXIS 2675 *; 2013 WL 93183

ALVA MESSER, Plaintiff, v. HI COUNTRY STABLES CORPORATION, Defendant.

Prior History: Messer v. Hi Country Stables Corp., 2012 U.S. Dist. LEXIS 170499 (D. Colo., Nov. 30, 2012)

Counsel:  [*1] For Alva Messer, Plaintiff: Donald L. Salem, Feldmann Nagel, LLC-Denver, Denver, CO.

For Hi Country Stables Corporation, Defendant, Counter Claimant: Kenneth H. Lyman, Malcolm S. Mead, Hall & Evans, LLC-Denver, Denver, CO.

For Alva Messer, Counter Defendant: Donald L. Salem, Michael G. Bryan, Feldmann Nagel, LLC-Denver, Denver, CO.

Judges: William J. Martinez, United States District Judge.

Opinion by: William J. Martinez

Opinion

AMENDED ORDER DENYING IN PART AND GRANTING IN PART MOTION FOR SUMMARY JUDGMENT

This matter is before the Court on Defendant’s Motion for Summary Judgment. (ECF. No. 41.) Plaintiff Alva Messer (“Plaintiff”) has filed a Response to this Motion (ECF No. 42.) and Defendant Hi Country Stables Corporation (“HCS” or “Defendant”) has filed a Reply. (ECF No. 45.) The Motion is ripe for adjudication.

Having reviewed the briefs and the relevant portions of the record, the Motion for Summary Judgment is granted in part and denied in part.

I. BACKGROUND1

A. Factual Background

On July 16, 2009, Plaintiff Alva Messer purchased a guided horseback ride from Hi County  [*2] Stables. (ECF No. 41 at 3.) Defendant HCS operates commercial horse-back riding at Glacier Creek Stables in Rocky Mountain National Park (“RMNP”). (ECF No. 41 at 7.) HCS is one of two equestrian companies owned by Rex Walker. (Id.) The other equestrian company is Sombrero Ranches, Inc. (“SRI”). (Id.) Before beginning any guided horseback ride, both companies require customers to sign an exculpatory contract, titled “Release” (hereafter “the Release” or “Release Forms”). (Id.) The Release Forms for HCS and SRI are identical, except for the name of the company being released from liability. (Id. at 4.) The Release Forms for HCS and SRI are printed in tablets containing 100 tear-away forms per tablet. Once printed, the printing company delivers the tablets to the offices of HCS and SRI. (Id.)

At the start of the 2009 riding season, one tablet of Release Forms labeled SRI was placed in a box of office supplies for delivery to HCS. (Id. at 5.) For reasons that are unexplained by Defendant, those same Release Forms—which Released SRI from liability—were used by HCS at Glacier Creek Stables on July 16, 2009. (Id. at 5; see also, Exh. C, Walker Dep. at 29:13 – 30:5.)

Typically, when customers  [*3] arrive at HCS, they are informed that they must sign a Release. (Id. at 6; Exh. D, Marshall Dep. at 29.) Amongst other employees at HCS, Dallas Marshall informs customers that they are required to sign the Release and “mark their riding ability.” (Id.)

When the Messers arrived at HCS on July 16, 2009, Marshall followed her normal practice and informed the Messers of the Release. (Id.) She also requested that they indicate their riding ability, which Plaintiff did. (Id.) Following this, and before commencing the guided horseback ride, Plaintiff signed the Release. (Id.) The Release expressly provides that the customer “understands. . .the specific risks. . .arising from riding a horse. . .and that the [customer] nevertheless intentionally agree[s] to assume these risks.” (ECF No. 41, Exh. A.)

After signing the Release, Plaintiff entered the corral where she was assigned her horse before commencing the trail ride. (Id. at 8; see also, Exh B, Alva Messer Dep. at 35:16-24). The wrangler who led the guests on Plaintiff’s trail ride was Terry Humphrey. (Id.)

Plaintiff encountered problems with her saddle during the trail ride which required adjustment by Plaintiff and Humphrey. (ECF No. 41,  [*4] Exh. B, Alva Messer Dep. at 49:1 – 50:1; Exh., Humphrey Dep. at 44:18-25; 45:7 – 46:1; 47:13-22; Exh. F, Donald Messer Dep. at 22:10-17).2

At the midway point, the Messer group stopped to take a rest break. (ECF No. 41, Exh. B, Alva Messer Dep. at 47:10-20). Plaintiff encountered further problems with her saddle—including slippage of the saddle to the horse’s right. (ld. at 50:2-9)

Sometime later, as Plaintiff’s horse was stepping down a “rock stair” in the trail, Plaintiff fell off the right side of the horse (the “Incident.”) (ECF No. 42, Exh. E, Humphrey Dep. at 54:15- 55:10; Exh. F, Donald Messer Dep. at 27:1- 28:6.) Plaintiff allegedly sustained serious injuries and economic loss resulting from the Incident. (ECF No.1 at ¶¶ 14 and 57.)

II. LEGAL STANDARDS

Summary judgment is warranted under Federal Rule of Civil Procedure 56 “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-50, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). A fact is “material” if under  [*5] the relevant substantive law it is essential to proper disposition of the claim. Wright v. Abbott Labs., Inc., 259 F.3d 1226, 1231-32 (10th Cir. 2001). An issue is “genuine” if the evidence is such that it might lead a reasonable jury to return a verdict for the nonmoving party. Allen v. Muskogee, 119 F.3d 837, 839 (10th Cir. 1997). In analyzing a motion for summary judgment, a court must view the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998) (citing Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986)). With this approach of resolving factual ambiguities against the moving party, the Court, as it should, thus favors the right to a trial. See Houston v. Nat’l Gen. Ins. Co., 817 F.2d 83, 85 (10th Cir. 1987).

III. ANALYSIS

Defendant’s instant Motion seeks reformation of the Release and moves for summary judgment as to the Plaintiff’s claims—including: negligence; product liability; and, wilful and wanton conduct. If granted, Defendant argues that the Release should bar the negligence and product liability claims. The Court will first address  [*6] this issue.

A. Effect of the Release on the Negligence and Product Liability Claims

1. Reformation

Defendant seeks to reform the Release to reflect the true intent of the parties by substituting the name HCS for SRI. (ECF No. 41 at 22.)

Reformation of a contract is an “equitable remedy, and the formulation of such remedy rests with the court’s discretion.” May v. Travelers Property Casualty Co. 2006 U.S. Dist. LEXIS 80849, 2006 WL 3218852 at *2-3 (D. Colo. 2006, November 6, 2006). “Reformation of a written instrument is appropriate only when the instrument does not represent the true agreement of the parties and the purpose of reformation is to give effect to the parties’ actual intentions.” Maryland Cas. Co. v. Buckeye Gas Prod. Co., 797 P.2d 11, 13 (Colo. 1990).3 Mutual mistake of a contract provides grounds for reformation if the written instrument “does not express the true intent or agreement of the parties.” Segelke v. Kilmer, 145 Colo. 538, 360 P.2d 423, 426-27 (Colo. 1961).

An “essential prerequisite to a court’s power to reform a contract on the ground  [*7] of mutual mistake is the existence of a prior agreement that represents the actual expectations of the parties and provides the basis upon which a court orders reformation.” Maryland Cas. Co., 797 P.2d at 13. Prior agreement must be found from the evidence presented, which must be “clear and unequivocal”, and appropriate under the “circumstances.” Id.
See also, Segelke 360 P.2d at 426-27.

Here, Defendant asserts that the intent of the Release was to bind Plaintiff Alva Messer and Defendant HCS. Defendant contends that reference to SRI on the Release was a mutual mistake and that SRI should be substituted with HCS. The Court agrees. This holding is supported by Plaintiff Messer’s own testimony, which clearly reflects the parties’ common understanding of the signed document and shows acknowledgment by Plaintiff that the Release was, in fact, releasing HCS – not SRI. Such testimony is found in the following passage:

Q. You were told it was a release, correct?

A. Correct.

Q. And did you have any conception or understanding of what that meant?

A. Well, I assume a release is to release the people, you know, the stables.

Q. And when you were presented this at Hi Country Stables, was it your understanding  [*8] that you were releasing Hi Country [Stables]?

A. Correct.

(Messer Deposition at 32:3-22).

Because the above testimony is clear and unequivocal, the Court finds that it reflects the parties’ true intentions of the Release that the contract was between Plaintiff Messer and Defendant HCS.

Additionally, Plaintiff signed the Release at a location owned by HCS immediately before embarking on a trail ride guided by HCS employees. (ECF No. 41, Exh A.) Given that Plaintiff signed the document at HCS, it is difficult to see how the Release was intended to apply to any entity other than HCS.

Accordingly, the Court finds that there was mutual mistake at the time the Release was entered into. Mutual intent of the parties was to enter into an agreement whereby HCS would be released from certain claims. This provides the equitable basis to grant the relief. The Court orders that the name “Sombrero Ranches, Inc.” (SRI) be deleted and substituted with “Hi Country Stables” (HCS) in the Release.

2. Application of Release to Plaintiff’s Negligence Claim

As the Court has found that the Release should be reformed, the next issue is whether the Release shields Defendant from Plaintiff’s negligence claim. For the  [*9] reasons below, the Court concludes that it does.

To determine whether the Release bars Plaintiff’s negligence claim, the Court must consider four factors: (1) the existence of a duty to the public; (2) the nature of the service performed; (3) whether the contract was fairly entered into; and (4) whether the intention of the parties is expressed in clear and unambiguous language. Jones v. Dressel, 623 P.2d 370, 376 (Colo. 1981).4

As to the first factor, Colorado law is clear that businesses engaged in recreational services do not perform services that implicate  [*10] a public duty. This favors Defendant’s position as to the validity of the Release. Chadwick v. Colt Ross Outfitters, Inc., 100 P.3d 465, 469 (Colo. 2004).

With respect to the second factor, the Court similarly finds for Defendant because horse-back riding is “not an essential service.” Hamill v. Cheley Colorado Camps, 262 P.3d 945, 949-50 (Colo. App. 2011) Horse-back riding is one of choice, not necessity.

As to third factor, this also cuts in favor of Defendant since there is no evidence to suggest that the Release was entered into unfairly. Instead, Plaintiff signed the Release “in consideration for the opportunity” to ride the trail led by HCS wranglers. (ECF No. 41, Exh A.) Plaintiff also indicated her riding ability. This suggests that she had ample time to review the Release and become familiar with its conditions. It is these facts, amongst others, that rebut any notion that the Release was unfair. Bauer v. Aspen Highlands Skiing Corp., 788 F. Supp. 472, 474-475 (D. Colo. 1992).

With respect to the fourth factor, the Court looks to the language of the Release to elicit its intent. The Court must determine “whether the intent of the parties was to extinguish liability and whether  [*11] this intent was clearly and unambiguously expressed.” Heil Valley Ranch, Inc. v. Simkin, 784 P.2d 781, 785 (Colo. 1989). Here, the test is met since the Release specifically uses the word “negligence” throughout the document. Reference to the word negligence expressly indicated that HCS would not be liable for such claims. Also, like the release in Jones, the Release in this case similarly points to the “specific risks” of property and personal injury damage that may “arise out of negligence.” Jones, 623 P.2d at 376. Such language serves to reinforce the intent of the Release and thatPlaintiff agreed to “assume such risks” during the course of the HCS led trail-ride. (ECF No. 41, Exh. A.)

In sum, the Court concludes that the Release shields Defendant from Plaintiff’s negligence claim. To the extent that Defendant’s Motion is directed towards that claim, the Motion for Summary Judgment is granted.5

3. Application of the Release to Plaintiff’s Strict Product Liability Claims

In addressing whether the Release applies to Plaintiff’s product liability claims, the Court finds this result is controlled by existing case law: Boles v. Sun Ergoline, 223 P.3d 724, 727-728 (Colo. 2010). That case held that an agreement releasing “a manufacturer from strict products liability for personal injury, in exchange for nothing more than an individual consumer’s right to have or use the product, necessarily violates the public policy of this jurisdiction and is void.” Id. (emphasis added). The Court holds that this passage has equal application here. As distinct from the negligence claim, Boles provides that the Release does not shield Defendant from the strict product liability claims.

Alternatively, Defendant argues that the broad language of the Release covers product liability claims.  [*13] Clause 2 provides: “that [the Customer] know[s] and understand[s] that horse riding . . . risks of . . . including the risk that [HCS]. . . may act negligently in . . . preparing or maintaining the horse . . . equipment or premises . . .” (ECF No. 41 Exh A.) Nothing in Clause 2 suggests that the Release covers claims which involve “leasing” or “manufacturing” saddles used in conjunction with Defendant’s trail rides, which would give rise to a products liability claim. Because exculpatory agreements are strictly construed against the party seeking exception, Defendant’s argument that the Release bars this claim must fail. Barker v. Colorado Region-Sports Car Club, 35 Colo. App. 73, 532 P.2d 372, 377 (Colo. App., 1974.)6

Accordingly, Plaintiff’s product liability claims are not barred by the HCS Release.7

B. Merits of the Product Liability Claims

Defendant also moves for summary judgment on the merits of Plaintiff’s product liability claim. In these claims, Plaintiff alleges (1) that HCS leased a defective saddle to Plaintiff by placing it in the “stream of commerce” and (2) that HCS manufactured a defective saddle that was used by Plaintiff (ECF No. 41 at 35; ECF No. 25 at ¶ ¶ 36-55.)8 Defendant offers two alternative arguments below as to why grant of summary judgment is justified with respect to these claims. The Court will address each in turn.

1. Horse-Back Riding by HCS is a Service and Does Not Give Rise to Products Liability

Defendant contends that summary judgment should be granted on Plaintiff’s product liability claims because the primary purpose of the contract was the provision of a service—not a product. This, Defendant contends, does not give rise to liability in tort. (ECF No. 41 at 37.) See, Yarbro v. Hilton Hotels, 655 P.2d 822, 828 (Colo. 1982)

To buttress its position, Defendant relies on Kaplan v. C Lazy U Ranch, 615 F. Supp. 234 (D. Colo. 1985). There, Judge John L. Kane of this District Court refused to treat “a saddled horse, or a ride on a horse with a saddle” as a product. Id. at 238. Judge Kane held that it was incongruent with strict product liability doctrine and cited several cases that have refused to extend the concept of strict liability to “persons rendering services.”9
Id. at 238 n.3. Defendant asserts that Kaplan has equal application here.

Plaintiff seeks to distinguish Kaplan by making specific reference to “SADDLE EQUIPMENT” in the Complaint. (See ECF No. 25 at ¶ ¶ 36- 51.) Plaintiff seeks to separate the saddle from the horse, and attempt to succeed on that basis.

The Court finds Kaplan persuasive. Like that case, the Court holds that a saddle (on a horse) is not a product—particularly in the context of horse-back riding services. The Court further finds Plaintiff’s distinction is misplaced because it fails to appreciate that the saddle was incidental to the primary purpose of the contract. Plaintiff entered into a contract for a guided five-hour horse back ride through RMNP. This service primarily relied upon a horse (which is not a product) and a saddle (which incidental to that service).10 Without a product, the product liability claims cannot succeed. Yarbro 655 P.2d at 828.

Because the saddle was only incidental to the contract for services, Plaintiff has failed to show a “trial  [*17] worthy” issue as to her product liability claims. Harper v. Mancos Sch. Dist. RE-6, 837 F.Supp.2d 1211, 1223-24 (D.Colo.2011).

2. Use of the Saddle Did Not Constitute a Lease

In the alternative, Defendant argues that summary judgment is warranted on Plaintiff’s product liability claims because it is not a “seller”of a product. That is, Defendant does not fall within the definition of “seller” under the statute because Defendant is not a “lessor” of products, nor a “manufacturer”. See generally, C.R.S. § 13-21-401; Hidalgo v. Fagen, Inc., 206 F.3d 1013, 1018 (10th Cir. 2000).11 Again, the Court agrees.

Contrary to Plaintiff’s position, the Court finds that Defendant does not “lease” saddles to its customers. Plaintiff signed a Release “in consideration for the opportunity to ride” a horse through RMNP. (ECF No. 41, Exh A.) The “opportunity to ride” does not create a lease. Its use is too short. Nor does it constitute ownership of the saddle itself.

Moreover, HCS cannot be considered a manufacturer because it does not manufacture saddles. (ECF No. 41, Exh. G, Humphrey  [*18] Dep. at ¶11; Exh H, Walker Dep. at ¶ 8.) Plaintiff argues that the “offside billet [of the saddle] is a product and that it became defective while in the course of it distribution from the original manufacturer through Defendant to her as the consumer.” (ECF No. 42 at 34-35). The Court treats this as an admission that Defendant never manufactured the billet. It also supports the finding that no product is involved in the present case.

Plaintiff has failed to show a genuine issue of fact as to whether Defendant leased or manufactured a saddle. Thus, Defendant’s Motion as to both of the product liability claims is granted.

3. Plaintiff’s Argument re Blueflame Gas

Plaintiff argues that Defendant placed a defective saddle “in the course of the distribution process” and is, therefore, liable for product liability. (ECF No. 42 at 33. (emphasis added.)) In support, Plaintiff heavily relies on Blueflame Gas, Inc. v. Van Hoose, 679 P.2d 579 (Colo. 1984). There, the defendant purchased propane from Diamond Shamrock. Defendant then transported and sold the propane directly to residential customers. A gas explosion occurred at a residential home. The plaintiff claimed, inter alia, strict liability  [*19] based Defendant’s failure to odorize the propane, making it a defective product. The Supreme Court held that a defective product must have arisen at the time of manufacture or “in the course of the distribution process” to the plaintiff. Id. at 590.

The Court is not compelled to find in Plaintiff’s favor based on Blueflame.12 The saddle in this case was not sold to Plaintiff. The saddle was not part of a distribution process. And, unlike the customers in Blueflame, the Court finds that Plaintiff is not permitted to pursue her product liability claim based on a “distribution process” theory.

Therefore, in addition to the reasons addressed above, Plaintiff’s reliance on Blueflame does not save her product liability claims from summary judgment.

C. Merits of the Wilful and Wanton Claim

Plaintiff’s claim for wilful and wanton conduct is trial worthy. First, a waiver cannot release wilful tortfeasors (alleged or otherwise). The Release has no bearing  [*20] on this claim. Barker v. Colorado Region Sports Car Club, 35 Colo. App. 73, 532 P.2d 372, 377 (Colo. 1974).

Second, willful and wanton conduct requires a mental state “consonant with purpose, intent and voluntary choice.” Brooks v. Timberline Tours, 127 F.3d 1273, 1276 (10th Cir. 1997). Because key facts going to this mental state are disputed, Defendant is not entitled to judgment as a matter of law. For example, Plaintiff contends that Humphrey did not perform the number of saddle “checks” he asserts. (Alva Messer Dep. at 43:4-44:18; 48:3-11; 48:21-49:17.) Plaintiff also disputes whether Humphery noticed the “saddle rolling to the right” during the trail ride. (Id.) These examples reflect material facts ripe for jury determination. If the jury credits Plaintiff’s testimony on these points, it could reasonably find that Defendant’s actions were wilful and wanton.

The Court finds that Plaintiff has shown a genuine dispute of material fact as to her wilful and wanton conduct claim. As to this claim, Defendant’s Motion for Summary Judgment is denied. See Bausman v. Interstate Brands Corp., 252 F.3d 1111, 1115 (10th Cir. 2001).

III. CONCLUSION

Based on the foregoing, the Court hereby ORDERS as follows:

1. Defendant’s  [*21] Motion for Summary Judgment (ECF No. 41) is GRANTED IN PART and DENIED IN PART;

2. Defendant’s Motion for Summary Judgment is GRANTED as to Plaintiff’s claims for negligence and product liability;

3. The Clerk shall enter judgment in favor of Defendant on Plaintiff’s negligence and product liability claims;

4. Defendant’s Motion for Summary Judgment is DENIED as to Plaintiff’s wilful and wanton claim; and

5. Trial will proceed solely on Plaintiff’s willful and wanton claim, as previously scheduled, on March 11, 2013.

Dated this 8th day of January, 2013

BY THE COURT:

/s/ William J. Martinez

William J. Martinez

United States District Judge


Wimmer v. Top Gun Guide Serv., 421 F. Supp. 3d 849, 2019 U.S. Dist. LEXIS 185888, 2019 WL 5558308

Wimmer v. Top Gun Guide Serv., 421 F. Supp. 3d 849, 2019 U.S. Dist. LEXIS 185888, 2019 WL 5558308

United States District Court for the District of South Dakota, Northern Division

October 26, 2019, Decided; October 28, 2019, Filed

1:18-CV-01001-CBK

Reporter

421 F. Supp. 3d 849 *; 2019 U.S. Dist. LEXIS 185888 **; 2019 WL 5558308

ANTHONY WIMMER, Plaintiff, v. TOP GUN GUIDE SERVICE, INC., JOHN DOES 1-5, Defendants.

Counsel:  [**1] For Plaintiff Anthony Wimmer: Michael W. Strain, LEAD ATTORNEY, Strain Morman Law Firm, Sturgis, SD; Scott G. Hoy, Hoy Trial Lawyers, Prof. L.L.C., Sioux Falls, SD.

For Defendant Top Gun Guide Service, Inc.: Gordon H. Hansmeier, LEAD ATTORNEY, Rajkowski Hansmeier Ltd., St. Cloud, MN.

Judges: CHARLES B. KORNMANN, United States District Judge.

Opinion by: CHARLES B. KORNMANN

Opinion

 [*851]  MEMORANDUM AND ORDER

This matter is before the Court on defendant Top Gun Guide Service, Inc.’s (“Top Gun”) motion for summary judgment pursuant to Federal Rule of Civil Procedure 56. Doc. 14.

BACKGROUND

This case arose from injuries that plaintiff Anthony Wimmer sustained while on a hunting trip hosted by defendant Top Gun near Aberdeen, South Dakota in April of 2015. Doc. 1 at 2; Doc. 6 at 1. Mr. Wimmer is a California resident and Top Gun is a Minnesota corporation. Id. On or about April 9, 2015, Mr. Wimmer arrived in Aberdeen, though he did not hunt on that day. Doc. 15 at 5; Doc. 22 at 1. At some point on April 9th, Mr. Wimmer signed a waiver purporting to release Top Gun from liability arising from the hunting trip. Doc. 15 at 5; Doc. 22 at 2. The release form provided, in pertinent part:

I acknowledge that hunting and fishing entails known and unanticipated risks which [**2]  could result in physical or emotional injury, paralysis, death, or damage to myself; . . . I understand that such risks are essential qualities of the activity. The risks include, among other things: Accidental shootings, or falls to myself . . . trip or fall accidents to myself . . . medical problems from preexisting conditions . . . to myself . . . I expressly agree and promise to accept and assume all of the risks existing in this activity. My participation in this activity is purely voluntary, and I elect to participate in spite of the risks to others and myself; I fully understand that hunting and fishing is a dangerous activity. I hereby voluntarily release, forever discharge, and agree to indemnify and hold harmless [Top Gun] from any and all claims, demands, or causes of action, which are in any way connected with my participation in this activity or my use of [Top Gun] equipment or facilities, including any such claims which allege negligent acts or omissions of [Top gun].

Doc. 17, Ex. D. The parties agree that in his deposition Mr. Wimmer testified that he read the release before signing it and that he did not disagree with anything contained therein. Doc. 15 at 6; Doc. 22 [**3]  at 2-4. Mr. Wimmer also agreed in his deposition that hunting and fishing is a dangerous activity. Anthony Wimmer Dep. at 41:7-9.

On April 10th, Mr. Wimmer arrived at the hunting site and began setting up hunting decoys. Doc. 15 at 7; Doc. 22 at 5. Shortly after having finished setting up the decoys, Mr. Wimmer was standing in the field where the hunt was to take place when he was struck from behind “by either an [all terrain vehicle (ATV)] or sled.” Id. The sled was being towed behind the ATV. Id. The ATV was being operated by a Top Gun guide.

Id. The accident  [*852]  occurred between 3:30 a.m. — 4:30 a.m. Doc. 15 at 4. Mr. Wimmer alleges that he sustained severe injuries. Doc. 1 at 2. •

Defendant argues that “[b]ecause Mr. Wimmer knowingly, voluntarily, and fairly signed a release that unambiguously covers the injuries that he suffered and that does not contravene public policy,” his claims should be dismissed with prejudice. Doc. 15 at 8. Defendant contends that the liability waiver Mr. Wimmer signed before participating in the hunt releases Top Gun from all liability in relation to the ATV accident. Id. In short, Top Gun’s argument relies on the liability waiver being found to encompass [**4]  the harm at issue in this case. Defendant then proceeds to argue that the waiver is valid and its enforcement would not contravene South Dakota’s public policy. Id. at 9-11. Defendant argues that releases involving voluntary recreational activities have withstood attacks that they are contrary to South Dakota’s public policy many times before; only an attempted waiver of conduct rising to the level of willful negligence or intentional tort would contravene the state’s public policy. Id. at 11. Because Mr. Wimmer does not allege willful negligence or any intentional torts, defendant argues that his claims must fail. Id.

Plaintiff responds that the harm that befell him was outside the scope of the waiver. Plaintiff argues that he had no meaningful opportunity to negotiate the terms of the waiver and so it must be viewed as an “anticipatory release and contract of adhesion, which should be viewed with a skeptical and critical eye,” and any ambiguities should be construed against the drafter. Doc. 20 at 5. Plaintiff argues that the waiver, by its terms, only applies to the limited activities of hunting and fishing. Id. Plaintiff argues that his are not hunting injuries because, at the time of the accident, [**5]  he had already finished setting up the decoys and was merely standing in the field waiting to be told what he should do next. Id. at 6. Plaintiff urges that such activity should not be considered hunting. Id.

Plaintiff next argues that even if he was hunting at the time of the accident, the release is contrary to South Dakota law as it purports to waive liability for acts of gross negligence and, so, enforcing it would be against South Dakota’s public policy. Id. at 7. Plaintiff also argues that provisions of South Dakota law related to motor vehicle liability preclude enforcement of the waiver as against the state’s public policy. Id. at 9.

Defendant replies that plaintiff’s reading of the waiver is too narrow, the terms of the waiver are broad enough to cover any injury “in any way connected with” the activity of hunting. Doc. 23 at 3. Thus, defendant contends, the terms of the waiver apply to plaintiff’s injury whether or not he was actively shooting or pursuing birds at the time of the injury. Id. Defendant further contends that setting up decoys is a part of pursuing birds, which is within the definition of hunting adopted in South Dakota’s laws. Id. at 4.

Defendant also argues that enforcing the release against [**6]  plaintiff would not violate South Dakota public policy because plaintiff only claims ordinary negligence, liability for which may be waived. Id. at 5. Defendant argues that plaintiff has produced no evidence that defendant’s agent operated the ATV in a reckless or willfully negligent manner. Id. at 6-7. Defendant argues that there was no disparity in bargaining power that would warrant this waiver being viewed as a contract of adhesion. Id. at 7. Finally, defendant argues that the waiver does not allow Top Gun to circumvent South Dakota’s motor vehicle insurance laws, as plaintiff has claimed, and enforcing the waiver would not be  [*853]  contrary to the public policy those laws espouse. Id. at 8.

LEGAL STANDARD

Summary judgment is proper where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Knutson v. Schwan’s Home Service, Inc., 711 F.3d 911, 913 (8th Cir. 2013). The United States Supreme Court has held that:

The plain language of Rule 56(c) mandates the entry of summary judgment . . . against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial. In such a situation, there can be no genuine issue as to any material [**7]  fact, since a complete failure of proof concerning an essential element of the non-moving party’s case necessarily renders all other facts immaterial.

Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986) (internal quotations omitted).

“As to materiality, the substantive law will identify which facts are material. Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Id. at 248. That is, to make summary judgment inappropriate, there must be a factual dispute concerning facts the existence or nonexistence of which would “be outcome determinative under [the] prevailing [substantive] law.” Grey v. City of Oak Grove, Mo., 396 F.3d 1031, 1034 (8th Cir. 2005).

Thus, in accordance with Rule 56(c), the party seeking summary judgment must first identify grounds demonstrating the absence of a genuine issue of material fact. Celotex Corp., 477 U.S. at 323. Upon such a showing, the burden shifts to the non-movant to present affirmative evidence, beyond the pleadings, showing that a genuine issue of material fact exists. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256-57, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). To meet its burden, the non-movant “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Ind. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986). Rather, the non-movant must be able to “show there [**8]  is sufficient evidence to support a jury verdict in [its] favor.” Nat’l Bank of Commerce v. Dow Chem. Co., 165 F.3d 602, 607 (8th Cir. 1999). After this exercise, “we view the facts and the inferences to be drawn from them in the light most favorable to the nonmoving party.” Northport Health Servs. of Arkansas, LLC v. Posey, 930 F.3d 1027, 1030 (8th Cir. 2019).

DISCUSSION

“Because this is a diversity action, we apply the substantive law of the forum state.” Vandewarker v. Cont’l Res., Inc., 917 F.3d 626, 629 (8th Cir. 2019), reh’g denied (Apr. 10, 2019) (citing
N. Oil & Gas, Inc. v. Moen, 808 F.3d 373, 376 (8th Cir. 2015). Under South Dakota law, a waiver of liability is contractual in nature and is governed by contract law. Johnson v. Rapid City Softball Ass’n, 514 N.W.2d 693, 697 (S.D. 1994). When interpreting a contract, “[t]he goal . . . is to see that the mutual intent of the parties is carried into effect.” Nelson v. Schellpfeffer, 2003 SD 7, 656 N.W.2d 740, 743 (S.D. 2003). Courts look to the language of the contract to determine the intent of the parties, Roseth v. Roseth, 2013 SD 27, 829 N.W.2d 136, 142 (S.D. 2013), and afford contractual terms their “plain and ordinary meaning,” Bunkers v. Jacobson, 2002 SD 135, 653 N.W.2d 732, 738 (S.D. 2002) (citation  [*854]  and quotation marks omitted). “When the meaning of contractual language is plain and unambiguous, construction is not necessary” because the “intent of the parties can be derived from within the four corners of the contract.” Roseth, 829 N.W.2d at 142 (citation omitted); see also
Nelson, 656 N.W.2d at 743 (“When the words of a contract are clear and explicit and lead to no absurd consequences, the search for the parties’ common intent is at an end.”).

When a contract is found to be ambiguous, however, “parol evidence [**9]  is admissible to explain the contract but inadmissible to vary or add terms to the contract.” Couch v. Lyon, No. CIV. 12-3029-RAL, 2013 U.S. Dist. LEXIS 160770, 2013 WL 5942607, at *4 (D.S.D. Nov. 5, 2013)
(citing
Roseth, 829 N.W.2d at 142.). A contract is not rendered ambiguous merely because the parties now disagree as to their intent at the time of contracting. Roseth, 829 N.W.2d at 142. “Instead, ‘a contract is ambiguous only when it is capable of more than one meaning when viewed objectively by a reasonably intelligent person who has examined the context of the entire integrated agreement.'” Id.
(quoting
Vander Heide v. Boke Ranch, Inc., 2007 SD 69, 736 N.W.2d 824, 836 (S.D. 2007)).

The release at issue in the instant case is not ambiguous. Although it must be interpreted and read in a common sense manner. The release, by its terms, covers “all claims, demands, or causes of action, which are in any way connected with [plaintiffs] participation in this activity or [plaintiff’s] use of [Top Gun] equipment…” Doc. 17, Ex. D. Furthermore, plaintiff has not challenged the validity of the release or any of its terms; thus, the Court will apply the release and construe it by its terms, using common sense methods.

Defendant argues that, at the time of injury, plaintiff was in the process of pursuing birds, that is, plaintiff was on a hunting trip, in a hunting field regardless of whether [**10]  he was actively shooting or preparing to shoot at the time. Because plaintiff was pursuing birds at the time he was injured, defendant argues that his injury is “connected with” the activity of hunting. Plaintiff argues that he was done setting up decoys at the time he was injured and, as a result, he was not pursuing birds at the time of the harm—he was merely a man standing in a field. As a matter of law, plaintiff could not have legally been pursuing waterfowl because the accident happened long before legal shooting time. Thus, both parties focused their arguments on what the plaintiff was doing at the time of the accident.

This accident could not, as a matter of law, have been a part of legal hunting. In South Dakota, a hunter may not shoot waterfowl until one half hour before sunrise. At the time of the accident, all preparations for hunting had been completed. The parties were in a waiting period. Instead, plaintiff was struck by a motor vehicle. The fact that plaintiff is claimed to be hunting at the time he was struck by the ATV is irrelevant because being struck by an ATV is not a harm arising out of hunting, especially long before sunrise. In addition, the release makes no [**11]  mention of a motor vehicle accident.

The language in the release, “in any way connected with [plaintiffs] participation in this activity,” is so broad that it necessitates an exercise in line drawing. At some point, it would be absurd to find an activity that, while distantly connected with plaintiff’s participation in the hunt, is covered by a waiver of liability for a hunting trip. For example, if plaintiff had been injured when the car in which he was being transported from the hotel to the hunting grounds was involved in an accident, would any negligence from that activity be covered  [*855]  by the release? It is certainly an activity in some way connected with plaintiff’s participation in the hunt, as the party was on the way to the hunting grounds. But to say that a waiver of liability for a hunting trip covered negligence related to a car trip from the hotel to the hunting grounds would be to stretch the bounds of what general, catch-all provisions of a contract can accomplish.

That is not to say that general contract provisions are not enforceable. Indeed, South Dakota case law has upheld the efficacy of broad waivers of liability. There are generally two lines of reasoning that permeate [**12]  South Dakota case law concerning releases from liability.

First, the more inherently dangerous or risky the recreational activity, the more likely that an anticipatory release will be held valid. That is, individuals who engage in activities like mountain climbing, race car driving, parachute jumping, and the like, are more likely to be held to have an understanding of the risky nature of their chosen activity.

Johnson, 514 N.W.2d at 700 (Wuest, J. concurring) (internal citations omitted). Second, releases are deemed more acceptable when they are written on a separate sheet of paper. Id. It is the first line of reasoning that is most relevant to the instant analysis. 1

The first line of reasoning recognizes that individuals who voluntarily engage in a particularly dangerous activity for recreational purposes must accept a certain amount of risk that is inherent in said activity. That is, when an individual chooses to go skydiving, signs a release with a vendor providing such services, and is injured while hurtling to the earth, he cannot then sue in contravention of that release. Hunting is likewise a dangerous activity; the hunter voluntarily exposes himself to all the dangers of the firearms enthusiast as well [**13]  as those of the outdoorsman. It is agreed that the release in this case covers liability arising out plaintiff’s participation in the activity of hunting. However, plaintiff’s participation in the hunt did not cause his injury. Defendant asserts that setting up decoys is a means of pursuing birds—hunting—but, while that may be true, neither the decoys themselves, nor any part of the process of placing them, caused plaintiff’s injuries.

Each case the Supreme Court of South Dakota has considered relating to the application of a release from liability has involved harm that arose out of the activity for which liability was waived. In Johnson, the signed release concerned the plaintiff’s participation in a softball league. She subsequently “injured her right ankle sliding into third base during a softball game.” Johnson, 514 N.W.2d at 694. In Holzer, the signed release concerned the plaintiff’s presence in the “pit” area of a race track; he was subsequently hit by a tire that flew off one of the racecars and over protective barricades. Holzer, 610 N.W.2d at 789-91. In Lee v. Beauchene, the signed release covered the plaintiff’s participation in an automobile race; subsequently his “car struck a hole [in the track] that he estimated was one [**14]  to one and one-half feet deep. The car flipped.” Lee v. Beauchene, 337 N.W.2d 827, 828 (S.D. 1983). In each of the foregoing cases, the plaintiff’s injury was caused by his or her participation in the activity for which liability was waived. That is, the injury arose from the activity itself. If that were not the case, however, those cases might have turned out quite differently. For instance, if the plaintiff in Holzer had been accidentally shot while working in the pit area, the question of whether he had waived the track’s liability  [*856]  for such harm would have been a different question.

In the instant case, plaintiff’s injury did not arise from his participation in the hunt. He was not accidentally shot by a fellow hunter, he did not strain his back while placing a decoy, nor did he twist his ankle while standing around waiting to be told what to do next. Instead, plaintiff was struck from behind by a motor vehicle at a time before legal hunting could commence, something separate and apart from his participation in the hunt. Thus, while liability was effectively waived for injury arising out of the activities of hunting or fishing, there was no release for the harm that befell plaintiff. The ATV was being driven by Top Gun staff, [**15]  presumably to transport the decoys from the cars to the hunting grounds. At some point in that process, the employee struck plaintiff with the ATV. While such work is in some way connected with the hunt, it is not connected with plaintiff’s participation in the hunt in any way beyond plaintiff’s mere presence on the hunting grounds. When plaintiff signed a release for harm arising out of hunting or fishing, he was simply not there giving up his right to sue for harm arising out of a motor vehicle accident, or any other activity when he could not have been legally hunting.

As the Court finds that the release does not apply to the harm at issue in this case, the parties’ arguments concerning South Dakota’s insurance law and public policy concerning releases of liability in claims for gross negligence, respectively, will not be addressed.

IT IS ORDERED that defendant Top Gun’s motion for summary judgment pursuant to Federal Rule of Civil Procedure 56, Doc. 14, is hereby DENIED.

DATED this 26th day of October, 2019.

BY THE COURT:

/s/ CHARLES B. B. KORNMANN

CHARLES B. B. KORNMANN

United States District Judge


Your release cannot use the term “inherent risk” as the description of the risks, it creates no release at all.

California appellate court reviews numerous issues brought by plaintiff in this skier v. skier fatality. Most important issue is the relationship between Assumption of the Risk in California and a Release.

Tuttle v. Heavenly Valley, L.P., 2020 Cal. App. Unpub. LEXIS 814, 2020 WL 563604

State: California, Court of Appeal of California, Fourth Appellate District, Division Three

Plaintiff: Grant Tuttle et al.

Defendant: Heavenly Valley, L.P.

Plaintiff Claims:

Defendant Defenses: doctrines of primary assumption of the risk, on the ground Tuttle’s accident was the result of the inherent risks of skiing, and express assumption of the risk, based on Tuttle’s signed release of all claims and liability for defendant’s negligence.

Holding: for the defendant

Year: 2020

Summary

Skier died after being hit by snowboarder coming out of terrain park. Descendant’s heirs could not sue because the release stated the descendant assumed the risk of her injuries. Case is still ongoing.

Discussion by the court provides great analysis of the different types of risk assumed and the differences between inherent risks and other risks.

Facts

On September 2, 2013, Tuttle purchased a season ski pass from defendant and executed a release.2 The release begins with an all-capital advisement: “WARNING, ASSUMPTION OF RISK, RELEASE OF LIABILITY INDEMNIFICATION AGREEMENT PLEASE READ CAREFULLY BEFORE SIGNING. THIS IS A RELEASE OF LIABILITY WAIVER OF CERTAIN LEGAL RIGHTS.”

The accident occurred on December 21, 2013. Snowboarder Anthony Slater was proceeding out of defendant’s terrain park and collided with skier Tuttle after their respective trails merged. The impact of the collision propelled Tuttle into a tree. Tuttle died the following morning. Factors that potentially contributed to the accident included defendant’s signage, fencing, crowd control the day of the accident, Tuttle’s ski path, and Slater’s speed.

It is unknown what happened to the lawsuit against the snowboarder.

The actual facts on how the trial proceeded are convoluted and not in the normal course of trials. The appellate court recognized this and found although the proceedings were different, the outcome was correct.

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

The court first reviewed release law in California. The main issue the court found was the relationship between a release in California and the inherent risks of a sport. The court made this statement, which should be known by everyone in the outdoor industry.

But a release that applies only to the inherent risks of a sport is the legal equivalent of no release at all.

When you play sports, explore the woods or ski, just three examples, you assume the risk of the inherent risks of the sport. If your release only identifies inherent risks as the risks, the release protects against, you release is protecting you from things you are already protected against. A plaintiff cannot sue you for the inherent risks of the activity.

Your release is written, or should be written, to protect you from all the other risks of an activity. Risks such as those created by equipment, guides or decision’s guides or participants make. Those are risks that are probably not inherent to the sport and a such; you are liable for those risks.

The court did an extensive analysis of these issues. The foundation case is Knight v. Jewett (1992) 3 Cal.4th 296, 11 Cal. Rptr. 2d 2, 834 P.2d 696, a California Supreme Court decision that has been quoted in hundreds of cases in most states and laid down the definitions of the different types of risk and how a person assumes those different risks.

Knight and its progeny have established that a ski resort operator is not liable for injuries caused by risks inherent in the sport of snow skiing. Instead, pursuant to the doctrine of primary assumption of the risk, participants in active sports assume responsibility for injuries sustained as a result of the sport’s inherent risks. Stated another way, the defendant owes no duty of care to protect the plaintiff from the inherent risks of an active sport. Because no duty of care is owed and the plaintiff has assumed the risk of injury, no release is necessary to absolve a defendant of liability when a plaintiff is injured as the result of an inherent risk in an active sport such as skiing.

The issue in the law then becomes has the defendant done something to change the inherent risks or said another way increased the risk to the participants. The participant assumes the inherent risks and others, but not to the extent the risk has been increased. You cannot assume gross negligence, for example.

A ski resort operator “still owe[s] a duty, however, not to increase the risks of injury beyond those that are inherent in the sport. This distinction is closely tied to the policy underlying the finding of no duty, i.e., there should be no liability imposed which would chill normal participation or fundamentally alter the nature of the sport, but liability may be appropriate where the risk is not ‘inherent’ in the sport.” This is the doctrine of secondary assumption of the risk, and it is an exception to the complete defense of primary assumption of risk.

The balance between the risks in the sport that create the excitement and define the sport versus actions of the defendant in controlling or presenting the sport in such a way the risks cannot be assumed by the participants.

The court then compared the issues of increasing the risk and comparative fault. Comparative fault is how the jury or trier of fact determines who is actually liable and in what percentages for the injuries of the plaintiff.

Comparative fault principles apply in secondary assumption of the risk cases. The trier of fact considers the “plaintiff’s voluntary action in choosing to engage in an unusually risky sport, whether or not the plaintiff’s decision to encounter the risk should be characterized as unreasonable” and weighs it against the defendant’s breach of the duty not to increase the risks beyond those inherent in the active sport. Where a plaintiff’s “injury has been caused by both a defendant’s breach of a legal duty to the plaintiff and the plaintiff’s voluntary decision to engage in an unusually risky sport, application of comparative fault principles will not operate to relieve either individual of responsibility for his or her actions, but rather will ensure that neither party will escape such responsibility.”

The court then reviewed the relationship between comparative fault and how that is affected when a release is used.

A different analysis applies when a skier signs a written release that expressly holds the ski operator harmless for its own negligence. This triggers the doctrine of express assumption of the risk. Unlike secondary assumption of the risk, but like primary assumption of the risk, the doctrine of express assumption of the risk provides a complete defense in a negligence action.

The court then clarified its statement defining how a court looks at how the defenses are applied to the facts.

However, unlike both implied primary and secondary assumption of the risk, which focus on risks inherent in an active sport like skiing, express assumption of the risk focuses on the agreement itself.

Court added further clarification to its statement.

A valid release “operates to relieve the defendant of a legal duty to the plaintiff with respect to the risks encompassed by the agreement and, where applicable, to bar completely the plaintiff’s cause of action.” The legal issue in an express assumption of the risk case “‘is not whether the particular risk of injury appellant suffered is inherent in the recreational activity to which the Release applies, but simply the scope of the Release.'”

In assumption of the risk, the plaintiff must know the risks they are assuming. A release removes that actual knowledge from the analysis.

Additionally, a plaintiff does not need to have “‘specific knowledge of the particular risk that ultimately caused the injury. [Citation.] If a release of all liability is given, the release applies to any negligence of the defendant [so long as the negligent act that results in injury is] “‘reasonably related to the object or purpose for which the release is given.'”

The court then looked at the limits of protection a release provides. That limit is defined as gross negligence.

There is an outer limit to the scope of a release from liability for one’s own negligence in the recreational sports context: As a matter of public policy, if a skier proves the operator unreasonably increased the inherent risks to the level of gross negligence, express assumption of the risk is no longer a viable defense; and the operator will be liable for damages notwithstanding the existence of a valid release of liability for ordinary negligence.

If the defendant engages in gross negligence, that is outside of the protection afforded by the release.

A validly executed express release of liability for a defendant’s ordinary negligence means the only viable theory for a judgment in a plaintiff’s favor is if the defendant acted with gross negligence. There is no inconsistency between findings that a defendant is ordinarily negligent by unreasonably increasing the inherent risks of snow skiing, but not grossly negligent. A finding of gross negligence would necessarily mean a defendant unreasonably increased the inherent risks of snow skiing, so that comparative fault principles apply. But an express release, coupled with an undisputed factual finding that a defendant did not act with gross negligence, necessarily results in a defense judgment.

The court then recapped its comparison of the legal issues in a case involving inherent and other risks and a release.

To recap, snow skiing has inherent risks, and a ski operator does not owe skiers any duty to protect against them. If a skier is injured as a result of a risk inherent in the sport, the doctrine of primary assumption of the risk provides a complete defense to a lawsuit against the ski operator. But a ski resort operator owes a duty not to unreasonably increase the risks beyond those inherent in the sport. If a ski operator breaches this duty, the doctrine of secondary assumption of the risk makes the ski resort liable to an injured skier on a comparative fault basis. If the skier executes a release that absolves the ski resort operator of liability for the operator’s negligence, the release is a complete defense, provided the ski operator did not act with gross negligence. That is to say, the ski operator is entitled to judgment as a matter of law if the skier has signed a valid release and the ski operator’s conduct, although negligent, was not grossly negligent.

There is a lot more discussion in the case about the procedural issues and how the trial was handled. There is no need to discuss these here.

So Now What?

This is a difficult case to read and understand, however, if you can parse the procedural arguments from the assumption of the risk and release arguments, it is extremely educational in explaining the relationship between the plaintiff and defendant in a case like this.

Simply put there is a hierarchy of defenses available to a business or program in the outdoor recreation industry. There is no fine line between them, in fact, it is a massive gray area, that changes when you move from state to state.

  • Inherent Risks of the Activity
  • Assumption of the Risk
  • Release

Nor are the defenses entirely separate from each other. And if used properly they can be effectively used to support and define each other.

Your website can help explain the risks, inherent and otherwise. Your release can identify specific risks, which may not be apparent to some or for which some may argue they did not know and understand. Your safety talk can define the inherent risks of the activity to make sure those are known by participants.

When writing a release or assumption of the risk agreement, those written documents need to take in all aspects of the risks and make sure nothing in your program or marketing derails your defense wall.

What do you think? Leave a comment.

Copyright 2020 Recreation Law (720) 334 8529

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

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

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

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

Plaintiff: Cindy Cannon PPA Emma Cannon

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

Plaintiff Claims: Negligence

Defendant Defenses: Indemnification by third party

Holding: for the Plaintiff

Year: 2020

Summary

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

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

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

Facts

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

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

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

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

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

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

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

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

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

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

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

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

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

An indemnification agreement in Connecticut has four elements.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

So Now What?

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

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

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

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

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

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

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

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

For more information about indemnification see:

Indemnification agreements? What are you signing?

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

What do you think? Leave a comment.

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Nevada Appellate court voids release because statements made between the riders & the mechanical bull operator creates a requirement to maneuver the bull in an easy fashion which voided the release. Plaintiff also claimed battery from the actions of the defendant.

A strong and well written dissent argued to enforce the release on general contract principals.

Kuchta v. Opco, 2020 Nev. App. Unpub. LEXIS 549, 2020 WL 3868434

State:
Nevada, Court of Appeals of Nevada

Plaintiff: Joseph Kuchta

Defendant: Sheltie Opco, LLC, a Nevada Limited Liability Company, d/b/a John Ascuaga’s Nugget, d/b/a Gilley’s Nightclub; and Wolfhound Holdings, LLC, a Delaware Limited Liability Company

Plaintiff Claims: Negligence, Negligence Per Se, Negligent Hiring and Respondent Superior, Negligent Supervision, Negligent Entrustment, and Battery

Defendant Defenses: Release

Holding: For the Plaintiff

Year: 2020

Summary

Bar patrons wanted to ride the mechanical bull. Before doing so they made the bull operator agree to an easy ride. After one of the riders was thrown and suffered an injury, they sued saying the agreement between the operator and the riders for an easy ride voids the release. The Nevada Court of Appeals agreed.

Facts

While socializing with friends at Gilley’s Nightclub in Sparks, Nevada, a bar owned by respondent Sheltie Opco, Kuchta and his friends observed an employee riding a mechanical bull. As the employee was riding the bull, another employee used a joystick to control the bull’s movements. After the employee demonstrated how easy and non-challenging it was to engage safely in a slow ride, she stepped off the bull.

Sometime later that night, Kuchta and his friends were considering riding the bull. Kuchta’s group approached the same employee, who they had watched ride the bull earlier, and who was now operating the joystick and controlling the ride. Two different people within the group that Kuchta was part of conversed with the employee about riding the mechanical bull.

Viewing all factual allegations in a light most favorable to Kuchta, his friends told the employee that each person in their group wanted an easy ride, which based on a difficulty scale of one to ten, they described as a two (with one meaning not moving at all), which the employee said she could provide. The friends indicated that everyone in the group was a novice and wanted a ride similar to the ride the employee had demonstrated. Furthermore, they told the employee that everyone should be able to step off the bull once the ride concluded, just as the employee had been able to do earlier that night after her ride. The employee agreed to provide the type of a ride Kuchta’s group requested. Thus, Kuchta’s and the employee’s understandings and expectations regarding Kuchta’s ride were that it would be easy, at a level two or at a low speed, and that Kuchta would be able to dismount after the ride was finished.

Before any person could ride the mechanical bull, however, Gilley’s required each patron to sign a previously prepared Assumption of Risk, Release, Indemnity, and Medical Treatment Authorization Agreement (Agreement), also known as a written waiver. The Agreement listed potential risks and possible injuries involved in riding the bull, including broken bones, and also released Sheltie Opco from any and all liability for injuries or negligence that occur from all risks, both known and unknown. Kuchta signed the Agreement, although the record does not reveal when it was signed in relation to the conversations described above.

According to Kuchta, once on the bull, the ride was initially slow, as had been requested. However, after approximately 20 seconds, the operator significantly increased the speed and violence of the bull’s movements. Kuchta was thrown from the bull and suffered a fractured pelvis.

Kuchta sued Sheltie Opco alleging: negligence, negligence per se, negligent hiring and respondent superior, negligent supervision, negligent entrustment, and battery. Sheltie Opco moved for summary judgment on all claims, arguing there was no genuine issue of fact because Kuchta expressly assumed the risks of the ride and consented to the battery when he signed the Agreement before riding the bull. The district court granted Sheltie Opco’s motion for summary judgment finding that Kuchta expressly assumed the risks of riding the bull by signing the Agreement, including consenting to the touching that was the basis for his battery claim.

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

The basic issue that pops up in this case is the conversation between the operator of the mechanical bull and the plaintiff who set the conditions for the plaintiff to ride the bull. Normally, verbal agreements are void and only the paper agreements are valid when a contract is signed. This is called the Parol Evidence rule. Oral statements made prior to the signing of the written agreement are of no value in interpreting the contract. Only the information contained in the four corners of the paperwork are reviewed.

This is a scary issue because any statement made by your staff could be used to defeat a release.

Kuchta argues that he did not expressly assume the risk because the operator specifically agreed to provide the requested slow ride (i.e., an intensity of two out of ten) and the operator instead ultimately conducted a wild ride exceeding his expectations.

Does a conversation between a customer and an employee, (or staff member) change a release? More importantly, does it create a modification of the experience so that the release does not cover the risk. Normally no, but in this case, Yes.

The court then looked at the requirements for a valid release under Nevada’s law.

(1) Contracts providing for immunity for liability for negligence must be construed strictly since they are not favorite[s] of the law . . . (2) such contracts must spell out the intention of the party with the greatest particularity . . . and show the intent to release from liability beyond doubt by express stipulation and no inference from the words of general import can establish it . . . (3) such contracts must be construed with every intendment against the party who seeks immunity from liability . . . (4) the burden to establish immunity from liability is upon the party who asserts such immunity . . . .

Taken as a whole, the requirements are not different in most states. However, the Nevada Appellate court looked further at the requirements to determine whether the plaintiff did assume the risk. Where the risks identified in the release or known by the plaintiff.

However, our inquiry does not stop here as it pertains to the waiver’s validity; we must determine whether Kuchta expressly assumed the risks contemplated by the waiver.

In Nevada, releases are looked at as proof, the plaintiff assumed the risk. These are one-way courts look at releases; however, it is a minority view. The release must then contain the necessary language for the defendant to prove the plaintiff knew and assumed the risk that caused his or her injury.

The court has combined, under Nevada’s law, the relationship of contract, the release, and the risks outlined or assumed by contract in the release. Meaning, not only must you agree not to sue, the risks you assume must be specific in the release.

“Express assumption of risk[‘s] . . . vitality stems from a contractual undertaking that expressly relieves a putative defendant from any duty of care to the injured party; such a party has consented to bear the consequences of a voluntary exposure to a known risk.”

A release under Nevada’s law is an express assumption of risk agreement. Express meaning written.

Generally, “[a]ssumption of the risk is based on a theory of consent.” For a party to assume the risk there are two requirements. “First, there must have been voluntary exposure to the danger. Second, there must have been actual knowledge of the risk assumed.” Actual knowledge of the danger by the party alleged to have assumed the risk is the essence of the express assumption of risk doctrine.

The plaintiff in this case did not consent to the ride he was given, even though he signed away his right to sue. The failure of the defendant to prove the plaintiff assented to the ride he received, which was not in the written release, was cause for the release to fail, possibly.

To determine whether the party signing had actual knowledge of the risks assumed, courts must consider “[(1)] the nature and extent of the injuries, [(2)] the haste or lack thereof with which the release was obtained, and [(3)] the understandings and expectations of the parties at the time of signing.”

The first two requirements were met in this case. However, the third requirement was not met. The plaintiff did not have an understanding or expectations of the parties at the time the release was signed.

These conflicting allegations create a genuine dispute of material fact as to the expectations of the parties and as to whether the bull operator’s conduct failed to meet those expectations. Because Kuchta and Sheltie Opco each presented consistent and conflicting facts regarding both parties’ expectations of the ride, and knowledge of the risks involved in a level two-of-ten or easy ride, a trier of fact should have resolved this issue. Thus, the district court erred by granting summary judgment in favor of Sheltie Opco as to Kuchta’s negligence claims.

No party, who signs a release, expects to be injured or killed. So, this third requirement is different. No guest signs the release with an understanding they can’t sue. They sign the release because it is part of the paperwork needed to engage in the activity. If you made the effort to make sure the person signing the release understood the expectations of them from you when signing the release, many might not.

So, this decision in Nevada does not void releases. It does, however, create an additional requirement in the relationship between your guests and your operations. The risks the client is undertaking must be known and assumed by the plaintiff prior to undertaking the activity. That risk must be expressed in the release.

The second argument the plaintiff made that the court undertook was the battery claim. Most people understand the TV term assault and battery as a criminal charge. However, battery has been an intentional tort for centuries. “A battery is an intentional and offensive touching of a person who has not consented to the touching.”

In this case, the touching is not an actual contact between the plaintiff and the defendant but causing the plaintiff to be “touched” by the landing surface which caused his injury.

The court looked at this intentional tort as greater than normal negligence.

“[G]eneral clauses exempting the defendant from all liability for negligence will not be construed to include intentional or reckless misconduct, or extreme and unusual kinds of negligence, unless such intention clearly appears.”

This phrase is quite interesting. Like all other states, a release does not cover intentional, reckless, or extreme conduct on the part of the defendant. At the same time, the court seemed to open the idea that a release under Nevada’s law could stop a claim for intentional, reckless, or extreme conduct if it was intentional and clear in the release.

Because there was a conflict between the plaintiff and the defendant as to the facts surrounding the battery, the Appellate court found the motion for summary judgment should not have been granted.

The dissent in this case would have upheld the release based on basic contract law. The dissent sets out a thorough review of contract law in Nevada.

Summing up, what 500 years of contract law tell us is this:

(1) a contract means what its words say and an unambiguous contract “will be enforced as written”;

(2) what the contractual words say is what they objectively convey in their ordinary sense regardless of what the parties might have personally thought or intended in their heads;

(3) the final contract supersedes all earlier verbal negotiations;

(4) parol evidence may only be used to clarify a term that is ambiguous, and an ambiguity does not arise merely because the parties disagree on what they think the contract means;

(5) parol evidence may never be used to contradict an express term of a contract, whether the contract is integrated or not;

(6) parol evidence may never consist of earlier negotiations inconsistent with the final contract, whether the final document is integrated or not;

(7) when there is no dispute regarding what the words of the contract consist of (and there is no dispute regarding what any parol evidence admitted to clarify an ambiguity actually is), and the only remaining dispute is over what those undisputed words and parol evidence mean, then all that remains is a pure question of law for the court.

The dissent specifically focused on the Parol Evidence Rule which in most cases have prevented the conversation between the patrons and the mechanical bull operator from being offered into evidence.

The court voided the release and allowed the intentional tort of battery to proceed.

So Now What?

This upends release law in Nevada. Your release must be able to prove the guest understood the risks they may encounter, All of the risks.

Any statements made by your staff, could alter your release, worse, alter the understanding of the release or the risks, creating an issue that will have to go to trial to determine.

Bringing an intentional tort into a lawsuit is another game changer. Raft guides that intentional hit a rock, bump a boat, or even flip a boat will create liability in Nevada for any injury their customers receive.

What do you think? Leave a comment.

Copyright 2020 Recreation Law (720) 334 8529

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

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

Author: Outdoor Recreation Insurance, Risk Management and Law

To Purchase Go Here:

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Email: Jim@Rec-Law.US

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

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Tuttle v. Heavenly Valley, L.P., 2020 Cal. App. Unpub. LEXIS 814, 2020 WL 563604

Tuttle v. Heavenly Valley, L.P., 2020 Cal. App. Unpub. LEXIS 814, 2020 WL 563604

Tuttle v. Heavenly Valley, L.P.

Court of Appeal of California, Fourth Appellate District, Division Three

February 5, 2020, Opinion Filed

G056427

Reporter

2020 Cal. App. Unpub. LEXIS 814 *; 2020 WL 563604

GRANT TUTTLE et al., Plaintiffs and Appellants, v. HEAVENLY VALLEY, L.P., Defendant and Respondent.

Notice: NOT TO BE PUBLISHED IN OFFICIAL REPORTS. CALIFORNIA RULES OF COURT, RULE 8.1115(a), PROHIBITS COURTS AND PARTIES FROM CITING OR RELYING ON OPINIONS NOT CERTIFIED FOR PUBLICATION OR ORDERED PUBLISHED, EXCEPT AS SPECIFIED BY RULE 8.1115(b). THIS OPINION HAS NOT BEEN CERTIFIED FOR PUBLICATION OR ORDERED PUBLISHED FOR THE PURPOSES OF RULE 8.1115.

Subsequent History: Request denied by Tuttle v. Heavenly Valley, L.P., 2020 Cal. LEXIS 2940 (Cal., Apr. 29, 2020)

Prior History:  [*1] Appeal from a judgment and post judgment orders of the Superior Court of Orange County, Ct. No. 30-2015-00813230, Nathan R. Scott, Judge.

Disposition: Affirmed.

Counsel: The Simon Law Group, Thomas J. Conroy; Williams Iagmin and Jon R. Williams for Plaintiffs and Appellants.

Wilson, Elser, Moskowitz, Edelman & Dicker, Steven R. Parminter, Patrick M. Kelly and John J. Immordino for Defendant and Respondent.

Judges: DUNNING, J.*, BEDSWORTH, ACTING P. J., MOORE, J. concurred.

Opinion by: DUNNING, J.

Opinion

INTRODUCTION

Skier and Heavenly Valley season passholder Dana Tuttle died after she and a snowboarder collided at Heavenly Valley’s resort in South Lake Tahoe. Tuttle’s spouse and sons sued Heavenly Valley and the snowboarder.1 Defendant asserted as defenses the doctrines of primary assumption of the risk, on the ground Tuttle’s accident was the result of the inherent risks of skiing, and express assumption of the risk, based on Tuttle’s signed release of all claims and liability for defendant’s negligence.

The trial court determined as a matter of law the release was unambiguous and covered Tuttle’s accident. Despite these conclusions, the jury was still asked to decide whether defendant “unreasonably increased the risks . . . over and above [*2] those inherent in the sport of skiing.” The jury found defendant did, but unanimously agreed defendant did not act with gross negligence. Finding Tuttle and defendant each 50 percent at fault, the jury awarded plaintiffs substantial damages.

A judgment in plaintiffs’ favor typically would have followed as a matter of course unless defendant formally moved for, and was granted, a judgment notwithstanding the verdict (JNOV). However, the trial court determined the jury’s factual finding that defendant was not grossly negligent, coupled with its legal conclusion that the release provided a complete defense to plaintiffs’ lawsuit, compelled entry of a judgment in defendant’s favor, even without a posttrial JNOV motion.

Plaintiffs appeal, but do not challenge the jury instructions, the special verdict form, or the finding that defendant did not act with gross negligence. Plaintiffs urge this court to (1) review the release do novo and conclude it does not cover Tuttle’s accident, (2) hold the release violates public policy, (3) find that defendant invited errors in the special verdict form and jury instructions and forfeited the opportunity for entry of judgment in its favor without first [*3]  formally moving for JNOV, and (4) order a new trial. We find no error, however, and affirm.

FACTUAL AND PROCEDURAL BACKGROUND

I.

The Release

On September 2, 2013, Tuttle purchased a season ski pass from defendant and executed a release.2 The release begins with an all-capital advisement: “WARNING, ASSUMPTION OF RISK, RELEASE OF LIABILITY INDEMNIFICATION AGREEMENT PLEASE READ CAREFULLY BEFORE SIGNING. THIS IS A RELEASE OF LIABILITY WAIVER OF CERTAIN LEGAL RIGHTS.” Salient provisions of the release are found in paragraphs 1, 2, 5, 6, and 13.

In paragraph 1, Tuttle acknowledged snow skiing “can be HAZARDOUS AND INVOLVES THE RISK OF PHYSICAL INJURY AND/OR DEATH.” In paragraph 2, she “ASSUME[D] ALL RISKS . . . known or unknown, inherent or otherwise [associated with skiing at the resort, including] falling; slick or uneven surfaces; surface and subsurface snow conditions; . . . variations in terrain; design and condition of man-made facilities and/or terrain features; . . . [and] collisions.” Paragraph 5 advised: “The description of the risks listed above is not complete and participating in the Activities may be dangerous and may also include risks which are inherent and/or which cannot be reasonably [*4] avoided without changing the nature of the Activities.”

Paragraph 6 included Tuttle’s express agreement “NOT TO SUE AND TO RELEASE [DEFENDANT] FROM ALL LIABILITY . . . for . . . injury or loss to [her], including death.” This paragraph specifically advised that Tuttle was releasing all “CLAIMS BASED ON [DEFENDANT’S] ALLEGED OR ACTUAL NEGLIGENCE . . . .” In paragraph 13, Tuttle agreed the release was “binding to the fullest extent permitted by law . . . on [her] heirs, next of kin, executors and personal representatives.”

II.

The Accident and the Lawsuit

The accident occurred on December 21, 2013. Snowboarder Anthony Slater was proceeding out of defendant’s terrain park and collided with skier Tuttle after their respective trails merged. The impact of the collision propelled Tuttle into a tree. Tuttle died the following morning. Factors that potentially contributed to the accident included defendant’s signage, fencing, crowd control the day of the accident, Tuttle’s ski path, and Slater’s speed.

Plaintiffs sued defendant and Slater.3 Defendant raised the defenses of implied and express assumption of the risk: (1) “any injury, loss or damage purportedly sustained . . . by Plaintiffs was directly [*5]  and proximately caused and contributed to by risks which are inherent to the activity in which Plaintiffs participated”; (2) “Plaintiffs either impliedly or expressly relieved Defendant of its duty, if any, to Plaintiffs by knowingly assuming the risk of injury”; and (3) defendant “is entitled to defense and indemnity of each and every cause of action alleged in the Complaint pursuant to the release agreement signed by Plaintiffs and/or Plaintiffs’ representative or agent.”

III.

The Jury Trial

The jury trial spanned five weeks.4 The week before jury selection, the parties stipulated to a special verdict form that posed two liability questions: (1) whether defendant “unreasonably increased the risks to Tuttle over and above those inherent in the sport of skiing” and (2) whether defendant was grossly negligent. The special verdict form further instructed the jury that if it answered “yes” to either question, it was to make findings regarding the amount of damages and allocation of fault. Before the final witness concluded his testimony, the trial court confirmed that counsel was not making any changes to the special verdict form.

The following day, at the close of evidence and outside the [*6] jurors‘ presence, the trial court denied plaintiffs’ motion for directed verdict and defendant’s renewed motion for nonsuit.5 The trial court rejected plaintiffs’ argument the release was fatally ambiguous with regard to the risks involved in the accident. Given the absence of competent extrinsic evidence regarding the release, the trial court determined its interpretation presented a legal question for the court: “So I will construe the release, relying on its plain language. I find that it is not ambiguous. It covers the risks here, most notably in paragraph 2 where it covers risks regarding design and collision, and later where it notes that the risks include injury, including death.”

In the trial court’s own words, the finding as a matter of law that the release unambiguously discharged defendant from liability for its own ordinary negligence meant “we still have questions for the jury about whether the contract was entered into and whether the defendant[] committed gross negligence that cannot be released. For these reasons, the plaintiffs’ motion for directed verdict is denied.”

The rulings prompted defendant’s counsel to suggest additional jury instructions and a revision to the [*7] special verdict form might be necessary to address the fact issues surrounding Tuttle’s execution of the release. The following colloquy then ensued: “[Plaintiffs’ counsel]: Your Honor I’ll shortcut the whole thing. With the court’s ruling, I’ll stipulate to the formation of the contract and proceed with the verdict form as is, so no need for additional instructions. [¶] [Defendant’s counsel]: I’m sorry. To be clear, we have a stipulation that the contract existed and that the contract included the release and waiver language? [¶] [Plaintiffs’ counsel]: Right. The release and—release of liability and waiver was executed—existed and was executed. That’s the stipulation. [¶] [Defendant’s counsel]: Accepted, your Honor. [¶] The Court: So stipulated.” (Italics added.)

At this point, the jurors returned to the courtroom. The trial court read the jury instructions, and plaintiffs’ counsel began his closing argument. He had this to say about the release: “What we’re talking about here, the liability of the resort does not fall under this release. And you are not going to be asked any questions on the verdict form about the release. Yeah, [Tuttle] signed one, and she understood the inherent [*8] risks of skiing, and that’s what the release
releases. It does not release gross negligence. It does not release what we’re talking about.”

At the beginning of the afternoon session, before defendant’s closing argument, the trial court and counsel met again outside the jurors’ presence to discuss the stipulation concerning the release. Plaintiffs’ counsel maintained the jury should not hear about the stipulation. When the trial court repeated its concern the jury could “end up finding that the release was not valid” and invited counsel to revisit the special verdict form, plaintiffs’ counsel replied there was no need as “the release in evidence releases
negligence. And the questions on the verdict form
go [] to gross negligence, and—this doesn’t have to do with the release, but the increase of unreasonable risk.” Defendant’s counsel remarked the “dialogue this morning, your Honor, was prompted in part by the plaintiffs’ desire not to have to modify further the special verdict form.” Plaintiffs’ counsel concurred: “Right.” Counsel then agreed the stipulation would not be read to the jury.

Closing arguments continued. Defendant’s counsel did not mention the release in his closing argument. [*9]  Neither did plaintiffs’ counsel in his rebuttal argument. There, he referred to the special verdict form and told the jurors, “[a]t the end of the day, it’s a simple exercise. That jury form . . . . [¶] . . . If you perceive wrong on the part of [defendant], you tick those two boxes. And there’s two of them—you tick them both. Procedurally, you tick the one about increased unreasonable risk, and then you tick the one about gross negligence. If you perceive wrong, that’s what you do.”

The jury was never told the release provided a complete defense to defendant’s ordinary negligence.

IV.

The Special Verdict

As to defendant, the special verdict form included three liability questions, three damages questions, and three comparative fault/apportionment of liability questions. The liability questions read as follows:

“3. Did Heavenly Valley do something or fail to do something that unreasonably increased the risks to Dana Tuttle over and above those inherent in the sport of skiing?

“Yes X No __

“4. Was Heavenly Valley grossly negligent in doing something or failing to do something that caused harm to Dana Tuttle?

“Yes __ No X

“If you answered ‘Yes’ to either question 3 or 4, then answer question [*10]  5. [¶] If you answered ‘No’ to both questions 3 and 4, and also answered ‘No’ to either question 1 or 2, then sign and return this verdict form. You do not need to answer any more questions.

“If you answered ‘Yes’ to both questions 1 and 2, and answered ‘No’ to both questions 3 and 4, insert the number ‘0’ next to Heavenly Valley’s name in question 11, skip question 5, and answer questions 6-11.

“5. Was Heavenly Valley’s conduct a substantial factor in causing harm to Dana Tuttle?

“Yes X No __”

Because the jury answered “yes” to question 5, it was instructed to answer the remaining questions. The jury determined plaintiffs’ damages were $2,131,831, with Tuttle and defendant sharing equal responsibility.

Immediately after polling the jurors, the trial court asked plaintiffs’ counsel to prepare the judgment and submit it the next morning. The trial court then thanked and discharged the jury without objection from trial counsel. No one noted on the record that express assumption of the risk was a complete defense to the jury’s verdict.

V.

Entry of a Defense Judgment

At the trial court’s direction, plaintiffs’ counsel prepared a proposed judgment awarding plaintiffs $1,065,915.50, plus costs and [*11] interest. Defendant objected on the basis the jury found defendant was not grossly negligent and the release provided “a complete and total defense to this entire lawsuit and Plaintiffs should take nothing.”6

After briefing and a hearing, the trial court sustained defendant’s objection to plaintiffs’ proposed judgment. In its March 9, 2018 order, the trial court reiterated its finding as a matter of law that Tuttle’s release “clearly, unambiguously, and explicitly released defendant from future liability for any negligence against Dana Tuttle.” The trial court explained its earlier finding concerning the scope of the release still left open fact questions as to whether Tuttle knowingly accepted the release agreement and, if she did, whether defendant acted with gross negligence. With the parties’ stipulation that Tuttle knowingly executed the release and the jury’s factual finding that defendant did not act with gross negligence, the trial court further explained there was only one legal conclusion: “[D]efendant has prevailed on the express assumption issue and ‘negate[d] the defendant’s duty of care, an element of the plaintiff’s case.'”

The trial court acknowledged “the structure” of [*12] the special verdict form erroneously directed the jury to continue to answer questions on damages after finding defendant had not been grossly negligent. The trial court found, however, the jury’s specific finding that defendant did not act with gross negligence was not inconsistent with, but instead overrode, the award of damages.

The trial court did not invite defendant to file a motion for JNOV or call for the filing of such a motion on its own initiative. Instead, it entered judgment in favor of defendant.

VI.

Plaintiffs’ Post judgment Motions

The defense judgment reiterated the jury’s special verdict findings and stated in relevant part: “It appearing that by reason of those special verdicts, and the Court’s interpretation of the terms of the legal contract in Decedent Dana Tuttle’s season ski pass agreement, and [the] legal conclusions as set forth in that certain Order entered on March 9, 2018, Defendants Heavenly Valley L.P., and Anthony Slater are entitled to judgment on Plaintiffs’ complaint.” (Some capitalization omitted.)

Plaintiffs filed a motion to set aside the judgment under Code of Civil Procedure section 663 on the ground the judgment was not consistent with the special verdict and adversely affected plaintiffs’ [*13] substantial rights. Plaintiffs also filed a motion for JNOV or, in the alternative, a new trial, on the grounds there was insufficient evidence defendant had not acted with gross negligence,7 the special verdict was “hopelessly contradictory” because the jury’s gross negligence finding imposed no liability, but its apportionment of fault between Tuttle and defendant did, and defendant invited errors.

The trial court denied plaintiffs’ post judgment motions. Plaintiffs timely appealed.

DISCUSSION

I.

The Release Covered Tuttle’s Accident.

The trial court found as a matter of law that defendant’s release was not ambiguous and covered Tuttle’s accident. Our review of the release is de novo. (Paralift, Inc. v. Superior Court (1993) 23 Cal.App.4th 748, 754, 29 Cal. Rptr. 2d 177.) No extrinsic evidence concerning the meaning of the release was presented in the trial court, so “the scope of a release is determined by [its] express language.” (Benedek v. PLC Santa Monica (2002) 104 Cal.App.4th 1351, 1357, 129 Cal. Rptr. 2d 197 (Benedek).)

Rather than a straightforward argument the trial court erred as a matter of law in interpreting the release, plaintiffs contend the release was narrow in scope and applied only to risks inherent in the sport of snow skiing. But a release that applies only to the inherent risks of a sport is the legal equivalent of no release at all. [*14]  (Cohen v. Five Brooks Stable (2008) 159 Cal.App.4th 1476, 1490, 72 Cal. Rptr. 3d 471 (Cohen); Zipusch v. LA Workout, Inc. (2007) 155 Cal.App.4th 1281, 1291, 66 Cal. Rptr. 3d 704 (Zipusch).) To understand the distinction, we detour briefly to discuss the doctrines of implied and express assumption of the risk.

A.

Overview: Assumption of the Risk

The California Supreme Court’s decision in Knight v. Jewett (1992) 3 Cal.4th 296, 11 Cal. Rptr. 2d 2, 834 P.2d 696 (Knight)8 and its progeny have established that a ski resort operator is not liable for injuries caused by risks inherent in the sport of snow skiing.9 Instead, pursuant to the doctrine of primary assumption of the risk, participants in active sports assume responsibility for injuries sustained as a result of the sport’s inherent risks. (Id. at p. 321.) Stated another way, the defendant owes no duty of care to protect the plaintiff from the inherent risks of an active sport. (Allan v. Snow Summit, Inc. (1996) 51 Cal.App.4th 1358, 1367, 59 Cal. Rptr. 2d 813 (Allan).) Because no duty of care is owed and the plaintiff has assumed the risk of injury, no release is necessary to absolve a defendant of liability when a plaintiff is injured as the result of an inherent risk in an active sport such as skiing.

A ski resort operator “still owe[s] a duty, however, not to increase the risks of injury beyond those that are inherent in the sport. This distinction is closely tied to the policy underlying the finding of no duty, i.e., there should be no liability imposed [*15]  which would chill normal participation or fundamentally alter the nature of the sport, but liability may be appropriate where the risk is not ‘inherent’ in the sport.” (Allan, supra, 51 Cal.App.4th at p. 1367, italics omitted.) This is the doctrine of secondary assumption of the risk, and it is an exception to the complete defense of primary assumption of risk. (Knight, supra, 3 Cal.4th at p. 308.)

Comparative fault principles apply in secondary assumption of the risk cases. The trier of fact considers the “plaintiff’s voluntary action in choosing to engage in an unusually risky sport, whether or not the plaintiff’s decision to encounter the risk should be characterized as unreasonable” and weighs it against the defendant’s breach of the duty not to increase the risks beyond those inherent in the active sport. (Knight, supra, 3 Cal.4th at p. 314.) Where a plaintiff’s “injury has been caused by both a defendant’s breach of a legal duty to the plaintiff and the plaintiff’s voluntary decision to engage in an unusually risky sport, application of comparative fault principles will not operate to relieve either individual of responsibility for his or her actions, but rather will ensure that neither party will escape such responsibility.” (Ibid.; see Allan, supra, 51 Cal.App.4th at p. 1367.)

A different analysis applies when a skier [*16] signs a written release that expressly holds the ski operator harmless for its own negligence. This triggers the doctrine of express assumption of the risk. Unlike secondary assumption of the risk, but like primary assumption of the risk, the doctrine of express assumption of the risk provides a complete defense in a negligence action.

However, unlike both implied primary and secondary assumption of the risk, which focus on risks inherent in an active sport like skiing, express assumption of the risk focuses on the agreement itself. A valid release “operates to relieve the defendant of a legal duty to the plaintiff with respect to the risks encompassed by the agreement and, where applicable, to bar completely the plaintiff’s cause of action.” (Knight, supra, 3 Cal.4th at p. 309, fn. 4, italics added.) The legal issue in an express assumption of the risk case “‘is not whether the particular risk of injury appellant suffered is inherent in the recreational activity to which the Release applies [citations], but simply the scope of the Release.'” (Hass, supra, 26 Cal.App.5th at p. 27.)

Additionally, a plaintiff does not need to have “‘specific knowledge of the particular risk that ultimately caused the injury. [Citation.] If a release of all liability is given, the [*17] release applies to any negligence of the defendant [so long as the negligent act that results in injury is] “‘reasonably related to the object or purpose for which the release is given.'” [Citation.]’ [Citation.] As we have said, ‘[t]he issue is not whether the particular risk of injury is inherent in the recreational activity to which the release applies, but rather the scope of the release.'” (Cohen, supra, 159 Cal.App.4th at p. 1485; see Allan, supra, 51 Cal.App.4th at p. 1374 [courts will enforce a skier’s agreement “to ‘shoulder the risk’ that otherwise might have been placed” on the ski resort operator].)

There is an outer limit to the scope of a release from liability for one’s own negligence in the recreational sports context: As a matter of public policy, if a skier proves the operator unreasonably increased the inherent risks to the level of gross negligence, express assumption of the risk is no longer a viable defense; and the operator will be liable for damages notwithstanding the existence of a valid release of liability for ordinary negligence. (See City of Santa Barbara v. Superior Court (2007) 41 Cal.4th 747, 777, 62 Cal. Rptr. 3d 527, 161 P.3d 1095 (Santa Barbara).)

To recap, snow skiing has inherent risks, and a ski operator does not owe skiers any duty to protect against them. If a skier is injured as a result of a risk inherent in the sport, [*18] the doctrine of primary assumption of the risk provides a complete defense to a lawsuit against the ski operator. But a ski resort operator owes a duty not to unreasonably increase the risks beyond those inherent in the sport. If a ski operator breaches this duty, the doctrine of secondary assumption of the risk makes the ski resort liable to an injured skier on a comparative fault basis. If the skier executes a release that absolves the ski resort operator of liability for the operator’s negligence, the release is a complete defense, provided the ski operator did not act with gross negligence. That is to say, the ski operator is entitled to judgment as a matter of law if the skier has signed a valid release and the ski operator’s conduct, although negligent, was not grossly negligent.

B.

Analysis

The parties stipulated Tuttle executed the release with full knowledge of its content; consequently, the validity of the release is not before us. The jury unanimously agreed defendant’s conduct did not constitute gross negligence, and plaintiffs do not challenge the sufficiency of the evidence to support that finding; thus, no public policy considerations preclude its enforcement. Our only [*19] concern is “‘whether the release in this case negated the duty element of plaintiffs’ causes of action.'” (Eriksson v. Nunnink (2015) 233 Cal.App.4th 708, 719, 183 Cal. Rptr. 3d 234.) If so, it applied to any ordinary negligence by defendant. (Benedek, supra, 104 Cal.App.4th at p. 1357.)

Defendant’s release did precisely that. Tuttle assumed “ALL RISKS associated with [skiing], known or unknown, inherent or otherwise.” She also agreed not to sue defendant and to release it “FROM ALL LIABILITY . . . BASED ON [DEFENDANT’S] ALLEGED OR ACTUAL NEGLIGENCE.” No more was required.

Defendant’s use of the phrase, “inherent or otherwise” did not create any ambiguity or confusion. As the United States Court of Appeals for the Tenth Circuit has recognized, “[t]he term ‘otherwise,’ when ‘paired with an adjective or adverb to indicate its contrary’ . . . is best understood to mean ‘NOT.’ Webster’s Third New Int’l. Dictionary 1598 (2002). The plain language and meaning of the phrases therefore reflect a clear intent to cover risks that are not inherent to skiing.” (Brigance v. Vail Summit Resorts, Inc. (10th Cir. 2018) 883 F.3d 1243, 1256-1257.)

Plaintiffs’ contention that defendant’s release “bears many similarities to the release” in Cohen, supra, 159 Cal.App.4th 1476 misses the mark. The plaintiff in Cohen fell from a rented horse on a guided trail ride. She sued the stable, alleging its employee, the trail guide, negligently [*20]  and “unexpectedly provoke[d] a horse to bolt and run without warning” (id. at p. 1492), causing her to lose control of her horse (id. at p. 1482). The trial court granted the defendant’s motion for summary judgment based on the plaintiff’s written agreement “‘to assume responsibility for the risks identified herein and those risks not specifically identified.'” (Id. at p. 1486, italics omitted.)

The Court of Appeal reversed. The Cohen majority noted “the trial court apparently granted summary judgment on the theory that the risks ‘not specifically identified’ in the Release include the risk that misconduct of respondent or its employee might increase a risk inherent in horseback riding.” (Cohen, supra, 159 Cal.App.4th at pp. 1486-1487, italics omitted.) This interpretation was erroneous because the stable’s agreement did not explicitly advise that the plaintiff was releasing the defendant from liability for the defendant’s negligence. Although a release is not required to use “the word ‘negligence‘ or any particular verbiage . . . [it] must inform the releasor that it applies to misconduct on the part of the releasee.” (Id. at pp. 1488-1489.) The release in Cohen used the word “negligence” only once, in reference to the plaintiff’s negligence, not that of the defendant. The stable’s release [*21] also did not “indicate that it covers any and all injuries arising out of or connected with the use of respondent’s facilities.” (Id. at p. 1489.)

Having found the release ineffective to trigger the doctrine of express assumption of the risk, the Cohen majority turned to the doctrines of implied assumption of the risk, i.e., it focused on the inherent risks of horseback riding. Summary judgment could not be granted on that basis, either, because a triable issue of fact existed as to whether the trail guide acted recklessly and increased the inherent risks of a guided horseback ride. (Cohen, supra, 159 Cal.App.4th at p. 1494-1495.)

Here, in contrast, Tuttle assumed all risks associated with her use of defendant’s facilities and expressly released defendant from all liability for its negligence. That language applied to ordinary negligence by defendant and provided a complete defense to plaintiffs’ lawsuit, so long as defendant’s conduct did not constitute gross negligence. (Knight, supra, 3 Cal.4th at pp. 308-309, fn. 4.)

The release in Zipusch, supra, 155 Cal.App.4th 1281 mirrors the one in Cohen, but not the one in this case. As in Cohen, the plaintiff in Zipusch did not agree to assume the risk of negligence by the defendant gym. Accordingly, the agreement was ineffective as an express release; and the issue for the Court [*22]  of Appeal was whether the plaintiff’s injury was the result of an inherent risk of exercising in a gym, in which case the primary assumption of the risk doctrine would apply, or whether it was the result of the gym increasing the inherent risks of exercise, in which case the secondary assumption of the risk doctrine would apply. (Id. at pp. 1291-1292.)

Hass, supra, 26 Cal.App.5th 11 is instructive. Plaintiffs cite Hass in their opening brief, but do not attempt to distinguish it, even though the release in Hass is similar to the one Tuttle signed. The analysis in Hass applies in this case.

In Hass, the plaintiffs’ decedent suffered a fatal cardiac arrest after finishing a half marathon organized and sponsored by the defendant. His heirs sued for wrongful death. The Court of Appeal held that cardiac arrest is an inherent risk of running a race, but a triable issue of material fact existed as to whether the defendant acted with gross negligence in failing to provide timely and adequate emergency medical services. (Hass, supra, 26 Cal.App.5th at p. 18.)

Addressing the release, Hass held: “By signing the Release in the instant case, we conclude that [the decedent] intended both to assume all risks associated with his participation in the race, up to and including the risk [*23]  of death, and to release [the defendant] (on behalf of himself and his heirs) from any and all liability with respect to any injuries he might suffer as a result of his participation. This was sufficient to block the [plaintiffs’] wrongful death claim for ordinary negligence.”10 (Hass, supra, 26 Cal.App.5th at p. 27.)

Our independent examination of defendant’s release convinces us Tuttle assumed all risks that might arise from skiing at defendant’s resort, including risks created by defendant’s ordinary negligence. With a valid rel