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When an organization makes rules and regulations that a subsidiary organization is supposed to obey, and then fails to follow, both organizations are liable to any plaintiff injured due to the failure to follow or enforce the organizational rules, policies, regulations or standards.

In this case, the national organization was also sued for failing to instruct and enforce the regional organization in the rules, regulations, standards or policies. If you are going to make rules, and you say the rules must be followed you have to make sure you train in the rules and that everyone follows the rules.

If you make a rule you have to enforce it if you are in charge of making rules.
Otherwise, don’t make rules!

T.K., a minor, v. Boys & Girls Clubs of America, et. al. 2017 U.S. Dist. LEXIS 87005 

State: Illinois, United States District Court for the Central District of Illinois, Springfield Division

Plaintiff: T.K., a minor, by and through his natural Father and Next Friend, Timothy Killings, and Timothy Killings, individually

Defendant: Boys & Girls Clubs of America, Boys and Girls Club of Decatur, Inc., and Mary K. Paulin

Plaintiff Claims: negligence and willful and wanton misconduct

Defendant Defenses: Failure to state a claim upon which relief can be granted filed in a Motion to dismiss

Holding: for the plaintiff

Year: 2017

This case is a federal diversity case. That means the plaintiff(s) and the defendant(s) were legally residents of different states, and the amount claimed by the plaintiff was greater than $75,000.00. In this case, the plaintiff was from California, and the Defendant was located in Illinois.

The plaintiff was in Illinois and attending the Decatur Boys & Girls Club, which was part of the America Boys & Girls Club. America Boys & Girls Club was based in Georgia.

America Boys & Girls Club provided policies, procedures, rules, guidelines and instructions to the Decatur Boys & Girls Clubs, and all other Boys & Girls Clubs. The Boys & Girls Clubs are required to follow the operating policies, procedures, rules, guidelines, and instructions.

While attending the club, the plaintiff was taken to a local farm. Neither of the defendants had permission to transport the minor plaintiff to the farm. While there the plaintiff was riding on a trailer (probably a hay ride)that did not have guardrails, seats, seatbelts or other equipment designed from keeping people from falling off. (But then very few hay rides do.) The tractor and trailer were pulled onto a public highway with 15-20 children on it. While on the highway the plaintiff either jumped or fell off or might have been pushed
off sustaining injuries.

The farm trailer was not designed or intended to transport people, and the trailer lacked guardrails, seats, seatbelts, and other equipment that might prevent people from falling off it. Defendant Paulin pulled the trailer, with T.K. and 15 to 20 additional children riding on it, onto a public highway with a tractor defendant.

The issue that the trailer was not designed to be on a highway and did not have seats, seatbelts or other equipment to keep people from falling off was repeatedly brought up by the court.

The defendants filed a motion to dismiss, and this opinion is court’s response to that motion.

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

A motion to dismiss is a preliminary motion filed when the allegations in the complaint do not meet the minimum requirements to make a legally recognizable claim.

“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Plausibility means alleging factual content that allows a court to reasonably infer that the defendant is liable for the alleged misconduct. A plaintiff’s complaint must suggest a right to relief, “raising that possibility above a speculative level.” “The required level of factual specificity rises with the complexity of the claim.”

When reviewing a motion to dismiss the court must look at the plaintiff’s pleadings as true and any inference that must be drawn from the pleadings is done so in favor of the plaintiff.

To plead negligence under Illinois’s law the plaintiff must prove “…that the defendant owed plaintiff a duty, it breached that duty, and the breach proximately caused plaintiff’s injury.” In Illinois, every person owes all other persons “a duty to exercise ordinary care to guard against injury which naturally flows as a reasonably probable and foreseeable consequence of his act.”

Whether this duty arises in a particular context depends on “the reasonable foreseeability of the injury, the likelihood of the injury, the magnitude of the burden of guarding against the injury, and the consequences of placing the burden on defendants.” Id. A child’s caretaker has a duty to protect the child from harm.

It is a legal question to be decided by the court if a legal duty exists.

…the relationship between him and America Boys & Girls Club and Decatur Boys & Girls Club imposed on the two  organizations a duty of care to adequately supervise him and protect him from harm, any unreasonable risk of harm, dangerous instrumentalities, and dangerous conditions.

The plaintiffs argued the duty of care of the two organizations was breached by:

(1) negligently supervising him, (2) allowing and causing him to be placed on a farm trailer that was not designed for transporting children and was therefore dangerous and not reasonably safe for him, (3) failing to warn or failing to adequately warn him of the potential for injury before putting him on the trailer, (4) failing to properly supervise the minors they placed on the trailer, and (5) failing to provide enough staff members to monitor the children they placed on the trailer.

The plaintiff’s also argued there was a greater responsibility and as such duty on the part of the America Boys & Girls Club to train the Decatur club on its rules, regulations and policies and failing to train on them was  also negligent.

T.K. further alleges that it failed to properly train Decatur Boys & Girls Club on the operating policies, procedures, rules, guidelines, and instructions of America Boys & Girls Club, and that it failed to supervise Decatur Boys & Girls Club to ensure that the operating policies, procedures, rules, guidelines, and instructions were followed.

In this case, the duty of care was created by the rules, regulations, policies and procedures created by the America Boys & Girls Clubs upon the Decatur Boys & Girls Club.

The plaintiff went on to argue, and since it was quoted by the court, accepted by the court that:

Defendant Paulin put him on the farm trailer even though Defendant Paulin did not have the requisite permission to  give him a ride on the trailer. Defendant Paulin towed the trailer, while T.K. and 15 to 20 additional children were on board, with a tractor onto a public highway. According to T.K., Defendant Paulin owed him a duty of care to protect him from any unreasonable risk of harm and breached that duty by (1) allowing and causing him to be placed on a farm trailer that was not designed for transporting children and was therefore dangerous and not reasonably safe for him; (2)
failing to warn him of the potential for injury before putting him on the trailer and pulling the trailer onto a public highway; (3) failing to warn him that the trailer was dangerous and not reasonably safe given that the trailer had no railings, barriers, walls, or seats; and (4) creating a dangerous condition by placing him on the trailer and pulling it onto a public highway.

The court held this was enough to create a duty of care and proved a possible negligence claim.

Furthermore, of note was a statement that a statutory violation of a statute in Illinois does not create a negligence per se claim.

A violation of a statute or ordinance designed to protect human life or property is prima facie evidence of negligence. . . . The violation does not constitute negligence per se, however, and therefore the defendant may prevail by showing that he acted reasonably under the circumstances.”

The court then looked at the minor plaintiff’s father claims to see if those met the requirements to prove negligence in Illinois.

To state a negligence cause of action, Mr. Killings must plead enough facts to make it plausible that he was harmed as a proximate result of Defendants’ breach of a duty they owed to him.

However, the father was not able to prove his claim because it is separate and distinct from the minor’s claim. “The fact that Defendants were responsible for T.K.’s well-being on July 17, 2015, does not mean that Defendants had any duty to Mr. Killings.”

It was T.K., not Mr. Killings, who was placed on an unsafe farm trailer and pulled onto a public road. Defendants, therefore, had a duty to exercise ordinary care to prevent injury to T.K., not Mr. Killings. Further, Mr. Killings does not claim that he was physically injured as a result of Defendants’ negligence; his only claimed injury is the money he has spent and the money he will spend in the future for T.K.’s past and future medical treatment. In short, Mr. Killings has not met the pleading requirements for a negligence claim against any Defendant.

The father also pleaded a claim for loss of aid, comfort, society and companionship of his child. However, Illinois’s law does not allow for recovery of those emotional damages unless the child’s injury is a fatality.

The claim is not one for damages stemming from the child’s physical injury, but one founded on the parents’ liability for the minor’s medical expenses under the Illinois Family Expense Act.

However, the father did have a claim for the medical expenses the father paid on behalf of his minor son for the injuries he incurred.

The plaintiff also pleaded res ipsa loquitur.

Res ipsa loquitur allows “proof of negligence by circumstantial evidence when the direct evidence concerning cause of injury is primarily within the knowledge and control of the defendant.” The doctrine “is meant to bridge an evidentiary gap when an injury could not have happened but for the defendant’s negligence.” Accordingly, res ipsa lo-quitur applies only when the facts “admit of the single inference that the accident would not have happened unless the defendant had been negligent.”

Res ipsa loquitur is a claim that when an incident has occurred, the control of the instrumentality was solely within the control of the defendant.

Under Illinois law, a plaintiff bringing a negligence claim based on the doctrine of res ipsa loquitur must plead that he was injured “in an occurrence that ordinarily does not happen in the absence of negligence” and that it was caused “by an agency or instrumentality within the defendant’s exclusive control.

An example of res ipsa loquitur is a passenger in an airplane that crashes. The pilot is the defendant, and the
control of the airplane is solely with the pilot.

Indeed, the doctrine of res ipsa loquitur can be appropriate if the instrument that caused the injury was in the defendant’s exclusive control “at a time prior to the injury and there is no change in conditions or intervening act that could reasonably have caused the event resulting in the injury.

However, the allegations of the plaintiff did not meet the requirements of res ipsa loquitur in Illinois.

Plaintiff’s final allegation discussed in the opinion was one for willful and wanton misconduct on the part of the defendants. Under Illinois’s law to establish a claim for willful and wanton conduct, the plaintiff must.

…plead facts establishing the elements of a negligence claim–duty, breach, proximate causation, and harm–and “either a deliberate intention to harm or an utter indifference to or conscious disregard for the welfare of the plaintiff.

Generally, this is the same standard to prove willful and wanton conduct in most states. Once the negligence claim is proved, then the allegations only need to support the additional acts as willful and wanton.

Therefore, to state claims for willful and wanton misconduct against Defendants, T.K. need only additionally allege either intentional or reckless willful and wanton misconduct committed by Defendants.

The court defined willful and wanton conduct.

Reckless willful and wanton misconduct is conduct committed with an utter indifference of or a conscious disregard for the safety of others. To meet this standard, the defendant “must be conscious of his conduct, and, though having no intent to injure, must be conscious, from his knowledge of the surrounding circumstances and existing conditions, that his conduct will naturally and probably result in injury.

With the allegations plead, the court found sufficient information to confirm the plaintiff going forward with willful and wanton claims. Those allegations include:

Decatur Boys & Girls Club and America Boys & Girls Club placed him and 15 to 20 other minors on an unsafe farm trailer with no guardrails, sidewalls, barriers, or seats while providing inadequate supervision. T.K. further alleges that the trailer was not designed to transport people.

Putting kids on a trailer was a major issue for the court. Kids on a highway on a vehicle not created to transport people were enough to create willful and wanton conduct.

The defendant argued that the allegations that created the negligence claim were also allowed to be the same facts. No new allegations needed to be plead to support the claims for willful and wanton conduct.

Under Illinois’s law, “[t]he same acts by a defendant, if sufficiently egregious, can constitute both negligence and willful and wanton conduct.” Therefore, “one can plead the same facts in two counts, one characterizing them as negligence and the other as willful and wanton conduct, if the same facts could support both theories.

The plaintiff had pled enough facts that the court found relevant and substantial to continue with the negligence and willful and wanton claim.

So Now What?

The actual rules, regulations, procedures were not identified by the court in making its decision. However, the continuous restatement of the plaintiff’s allegations in the same order and words. However, the court specifically stated the defendants failed to follow their own rules.

If you have rules, regulations, policies, procedures, or you must abide by such you MUST follow them. There are no loop holes, exceptions or “just this one time” when dealing with rules, policies and procedures that affect safety or affect minors. If you make them, you must follow them.

If you make them, you must make sure everyone is trained on them. One of the big issues the plaintiff pleads and the court accepted was the rules made by the parent organization were not known or followed by the subsidiary organization. The parent organization when making rules is under a requirement to make sure
the rules are understood and followed according to this decision in Tennessee.

The other major issue was transporting the plaintiff away from the location where the parents thought the plaintiff would be without their permission and then transporting the plaintiff on a road without meeting the requirements of state law, seats, seat belts, etc.

When you have minors, especially minors under the age of ten, you are only acting within the realm and space permitted by the parents. The line that makes me cringe every time I hear it on the news is “If I would have known they were going to do ______________, I never would have let me kid go.” Listen and you
will realize you will hear it a lot when a minor is injured.

You need to prepare your program and your parents so that line is never spoken about you.

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

What do you think? Leave a comment.

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T.K., a minor, v. Boys & Girls Clubs of America, et. al. 2017 U.S. Dist. LEXIS 87005

T.K., a minor, v. Boys & Girls Clubs of America, et. al. 2017 U.S. Dist. LEXIS 87005

T.K., a minor, by and through his natural Father and Next Friend, Timothy Killings, and Timothy Killings, individually, Plaintiffs, v. Boys & Girls Clubs of America, Boys and Girls Club of Decatur, Inc., and Mary K. Paulin, Defendants.

Case No. 16-cv-03056

UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF ILLINOIS, SPRINGFIELD DIVISION

2017 U.S. Dist. LEXIS 87005

June 6, 2017, Decided

June 7, 2017, E-Filed

CORE TERMS: trailer, willful, farm, wanton misconduct, res ipsa loquitur, negligence claims, pleaded, cognizable, exclusive control, wanton, medical expenses, supervision, pulled, negligence per se, public road, legal conclusions, pulling, seat, factual allegations, right to relief, conscious disregard, indifference, speculative, supervise, reckless, notice, owed, public highway, guidelines, transport

COUNSEL: [*1] For T.K., a Minor, By And Through His Natural Father and Next Friend, Timothy Killings, Timothy Killings, Plaintiffs: Christopher Ryan Dixon, THE DIXON INJURY FIRM, St Louis, MO.

For Boys & Girls Club of America, Boys and Girls Club of Decatur, Inc., Defendants: Randall A Mead, LEAD ATTORNEY, DRAKE NARUP & MEAD PC, Springfield, IL.

For Mary K Paulin, Defendant: Daniel R Price, LEAD ATTORNEY, WHAM & WHAM, Centralia, IL.

JUDGES: SUE E. MYERSCOUGH, UNITED STATES DISTRICT JUDGE.

OPINION BY: SUE E. MYERSCOUGH

OPINION

SUE E. MYERSCOUGH, U.S. District Judge:

Before the Court are Defendants Boys & Girls Clubs of America and Boys & Girls Club of Decatur, Inc.’s Combined Rule 12(b)(6) Motion to Dismiss Complaint and Alternative Rule 12(f) Motion to Strike Portions of Count I of the Second Amended Complaint (d/e 32) and Defendant Mary K. Paulin’s Combined Rule 12(b)(6) Motion to Dismiss Complaint and Alternative Rule 12(f) Motion to Strike Portions of Count IV of the Second Amended Complaint (d/e 33). The motion filed by Defendants Boys and Girls Club of Decatur, Inc. (Decatur Boys & Girls Club) and Boys & Girls Clubs of America (America Boys & Girls Club) is GRANTED IN PART and DENIED IN PART. Defendant Paulin’s motion is DENIED. In the Second Amended Complaint, T.K., a [*2] minor, through his father, Timothy Killings, sufficiently pleads negligence and willful and wanton misconduct causes of action against all Defendants. In addition, Mr. Killings pleads cognizable claims for T.K.’s past and future medical expenses against all Defendants. However, the allegations of the Second Amended Complaint are not sufficient to render the doctrine of res ipsa loquitur applicable against Decatur Boys & Girls Club or America Boys & Girls Club.

I. BACKGROUND

The following facts come from Plaintiffs’ Second Amended Complaint. The Court accepts them as true at the motion to dismiss stage. Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir. 2008).

On July 17, 2015, T.K., a then-eight-year-old resident of California, was a member of Decatur Boys & Girls Club, a corporate citizen of Illinois and a licensed child-care facility. On that same date, Decatur Boys & Girls Club was operating a summer camp through its agents and employees, and T.K. was under the paid care and supervision of Decatur Boys & Girls Club and America Boys & Girls Club. America Boys & Girls Club, a corporate citizen of Georgia, provides operating policies, procedures, rules, guidelines, and instructions regarding how Decatur Boys & Girls Club is to operate. Decatur [*3] Boys & Girls Club is required to follow these operating policies, procedures, rules, guidelines, and instructions.

On July 17, 2015, T.K. was taken from the premises of Decatur Boys & Girls Club in Decatur, Illinois, to property in Clinton, Illinois, owned by Defendant Paulin, an Illinois citizen. Neither Decatur Boys & Girls Club nor America Boys & Girls Club had permission to transport T.K. from Decatur to Defendant Paulin’s property in Clinton. Defendants,1 again without permission, put T.K. on a farm trailer owned by Defendant Paulin and located on Defendant Paulin’s property. The farm trailer was not designed or intended to transport people, and the trailer lacked guardrails, seats, seatbelts, and other equipment that might prevent people from falling off it. Defendant Paulin pulled the trailer, with T.K. and 15 to 20 additional children riding on it, onto a public highway with a tractor Defendant Paulin owned. The trailer was not being used in connection with a parade or a farm-related activity.

1 The use of “Defendants” in this Opinion will refer collectively to Decatur Boys & Girls Club, America Boys & Girls Club, and Mary K. Paulin.

While riding on the trailer, T.K. fell or jumped off the trailer or was pushed off. As a result, T.K. sustained injuries to his head, face, eyes, chest, neck, back, arms, lungs, hands, legs, [*4] and feet. T.K. underwent medical treatment for his injuries and will have to undergo additional treatment in the future. T.K’s father, Timothy Killings, a citizen of California, has incurred expenses related to his son’s medical care and will incur additional expenses in the future for his son’s future medical care.

On March 3, 2016, Plaintiffs filed their Complaint (d/e 1) against Defendants. Plaintiffs subsequently filed their First Amended Complaint (d/e 26) on May 23, 2016, and their Second Amended Complaint (d/e 31) on June 17, 2016. The Second Amended Complaint contains five counts. Counts 1 through 3 allege claims against Decatur Boys & Girls Club and America Boys & Girls Club for, respectively, negligence, negligence based on the doctrine of res ipsa loquitur, and willful and wanton misconduct. Counts 4 and 5 allege negligence and willful and wanton misconduct claims, respectively, against Defendant Paulin.

On June 27, 2016, Decatur Boys & Girls Club and America Boys & Girls Club filed their Combined Rule 12(b)(6) Motion to Dismiss Complaint and Alternative Rule 12(f) Motion to Strike Portions of Count I of the Second Amended Complaint, asking the Court to dismiss Counts 1 through 3 for failing to [*5] state cognizable claims or, in the alternative, to strike certain paragraphs of the Second Amended Complaint. On June 30, 2017, Defendant Paulin filed her Combined Rule 12(b)(6) Motion to Dismiss Complaint and Alternative Rule 12(f) Motion to Strike Portions of Count IV of the Second Amended Complaint, asking the Court to dismiss Counts 4 and 5 for failing to state cognizable claims or, in the alternative, to strike certain paragraphs of the Second Amended Complaint.

II. JURISDICTION

This Court has original jurisdiction over Plaintiffs’ claims because no Plaintiff is a citizen of the same state as any Defendant and Plaintiffs are seeking damages in excess of $75,000. See 28 U.S.C. § 1332(a)(1); McMillian v. Sheraton Chi. Hotel & Towers, 567 F.3d 839, 844 (7th Cir. 2009) (“When the jurisdictional threshold is uncontested, we generally will accept the plaintiff’s good faith allegation of the amount in controversy unless it appear[s] to a legal certainty that the claim is really for less than the jurisdictional amount.”) (internal quotation marks omitted).

III. LEGAL STANDARD

“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009). Plausibility means alleging factual content that allows a court to reasonably infer [*6] that the defendant is liable for the alleged misconduct. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 547, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007). A plaintiff’s complaint must suggest a right to relief, “raising that possibility above a speculative level.” Kubiak v. City of Chicago, 810 F.3d 476, 480 (7th Cir. 2016). “The required level of factual specificity rises with the complexity of the claim.” McCauley v. City of Chicago, 671 F.3d 611, 616-17 (7th Cir. 2011).

When faced with a Rule 12(b)(6) motion to dismiss, the Court “accept[s] as true all of the well-pleaded facts in the complaint and draw[s] all reasonable inferences in favor of the plaintiff.” Roberts v. City of Chicago, 817 F.3d 561, 564 (7th Cir. 2016). “[L]egal conclusions and conclusory allegations merely reciting the elements of the claim are not entitled to this presumption of truth.” McCauley, 671 F.3d at 616. Further, the Court is “not obliged to ignore any facts set forth in the complaint that undermine the plaintiff’s claim.” R.J.R. Servs., Inc. v. Aetna Cas. & Sur. Co., 895 F.2d 279, 281 (7th Cir. 1989). The Court may “strike from a pleading . . . any redundant, immaterial, impertinent, or scandalous matter.” Fed. R. Civ. Pro. 12(f).

IV. ANALYSIS

A. Count I and Count IV Sufficiently Plead Negligence and Medical Expense Claims Against All Defendants.

1. T.K. has pleaded cognizable negligence claims against all Defendants.

In a case where federal jurisdiction is based on diversity of citizenship under 28 U.S.C. § 1332, “[s]tate substantive law applies, but federal procedural rules govern.” Doermer v. Callen, 847 F.3d 522, 529 (7th Cir. 2017). “To state a claim for negligence under Illinois law, a plaintiff must plead [*7] that the defendant owed plaintiff a duty, it breached that duty, and the breach proximately caused plaintiff’s injury.” Allstate Indem. Co. v. ADT LLC, 110 F. Supp. 3d 856, 862-63 (N.D. Ill. 2015) (citing Simpkins v. CSX Transp., Inc., 2012 IL 110662, 965 N.E.2d 1092, 1097, 358 Ill. Dec. 613 (Ill. 2012). In Illinois, “every person owes to all other persons a duty to exercise ordinary care to guard against injury which naturally flows as a reasonably probable and foreseeable consequence of his act.” Jane Doe-3 v. McLean Cnty. Unit Dist. No. 5 Bd. of Dirs., 2012 IL 112479, 973 N.E.2d 880, 890, 362 Ill. Dec. 484 (Ill. 2012). Whether this duty arises in a particular context depends on “the reasonable foreseeability of the injury, the likelihood of the injury, the magnitude of the burden of guarding against the injury, and the consequences of placing the burden on defendants.” Id. A child’s caretaker has a duty to protect the child from harm. Ryan v. Yarbrough, 355 Ill. App. 3d 342, 823 N.E.2d 259, 262, 291 Ill. Dec. 249 (Ill. App. Ct. 2005). Whether a duty exists is a question of law to be decided by the Court. Simpkins, 965 N.E.2d at 1096.

In support of his negligence claims against America Boys & Girls Club and Decatur Boys & Girls Club, T.K.2 alleges that he was a member of Decatur Boys & Girls Club and was entrusted to the care of both organizations on July 17, 2015. Sec. Am. Complaint, ¶¶ 15-16. America Boys & Girls Club and Decatur Boys & Girls Club agreed to accept the “care, custody, and control” of T.K. for the purpose of providing child care. Id. ¶ 16. T.K. also alleges [*8] that on July 17, 2015, the relationship between him and America Boys & Girls Club and Decatur Boys & Girls Club imposed on the two organizations a duty of care to adequately supervise him and protect him from harm, any unreasonable risk of harm, dangerous instrumentalities, and dangerous conditions. Id. ¶¶ 42-43.

2 Plaintiffs do not separate T.K’s claims from Mr. Killings’ claims in the Second Amended Complaint. To avoid confusion, the Court will address the allegations of the Second Amended Complaint as those of T.K. when analyzing T.K’s claims and as those of Mr. Killings when analyzing Mr. Killings’ claims.

Further, according to T.K., America Boys & Girls Club and Decatur Boys & Girls Club breached the duty of care they owed him in several ways, including by (1) negligently supervising him, (2) allowing and causing him to be placed on a farm trailer that was not designed for transporting children and was therefore dangerous and not reasonably safe for him, (3) failing to warn or failing to adequately warn him of the potential for injury before putting him on the trailer, (4) failing to properly supervise the minors they placed on the trailer, and (5) failing to provide enough staff members to monitor the children they placed on the trailer. Id. ¶ 45. With respect to America Boys & Girls Club, T.K. further alleges that it failed to properly train Decatur Boys & Girls Club on the operating policies, procedures, rules, guidelines, and instructions of America Boys & Girls Club and [*9] that it failed to supervise Decatur Boys & Girls Club to ensure that the operating policies, procedures, rules, guidelines, and instructions were followed. Id. ¶¶ 46-47. In addition, T.K. claims that the actions of America Boys & Girls Club and Decatur Boys & Girls Club proximately caused his injuries. Id. ¶¶ 33-39, 49.

In support of his negligence claim against Defendant Paulin, T.K. alleges that on July 17, 2015, Defendant Paulin put him on the farm trailer even though Defendant Paulin did not have the requisite permission to give him a ride on the trailer. Sec. Am. Complaint, ¶¶ 21, 23. Defendant Paulin towed the trailer, while T.K. and 15 to 20 additional children were on board, with a tractor onto a public highway. Id. ¶¶ 28-29. According to T.K., Defendant Paulin owed him a duty of care to protect him from any unreasonable risk of harm and breached that duty by (1) allowing and causing him to be placed on a farm trailer that was not designed for transporting children and was therefore dangerous and not reasonably safe for him; (2) failing to warn him of the potential for injury before putting him on the trailer and pulling the trailer onto a public highway; (3) failing to warn [*10] him that the trailer was dangerous and not reasonably safe given that the trailer had no railings, barriers, walls, or seats; and (4) creating a dangerous condition by placing him on the trailer and pulling it onto a public highway. Id. ¶¶ 72-73. In addition, T.K. alleges that the actions of Defendant Paulin proximately caused his injuries. Id. ¶¶ 33-39, 75.

Based on these allegations, T.K. has sufficiently pleaded negligence claims against Decatur Boys & Girls Club, America Boys & Girls Club, and Defendant Paulin. The allegations in Count I and Count IV of the Second Amended Complaint give Defendants notice of the basis for T.K.’s negligence claims against them and are sufficient to establish that T.K. has a plausible, as opposed to speculative, right to relief against Defendants. This is all that is required of a plaintiff under the federal notice pleading regime. See Iqbal, 556 U.S. at 678; Twombly, 550 U.S. at 547.

Defendants do not seem to dispute such a finding. Indeed, their arguments for the dismissal of Count I and Count IV focus on the allegations in the Second Amended Complaint relating to an alleged violation of 625 Ill. Comp. Stat. 5/11-1408, a provision of the Illinois Vehicle Code, and claims that their alleged statutory violations constitute [*11] negligence per se. See Mot. to Dismiss (d/e 32), at 1-2; Memorandum of Law (d/e 21), at 4-6; Mot. to Dismiss (d/e 33), at 1-2; Memorandum of Law (d/e 34), at 1-2. Defendants are correct that Illinois does not recognize statutory violations as negligence per se. See Kalata v. Anheuser-Busch Companies, Inc., 144 Ill. 2d 425, 581 N.E.2d 656, 661, 163 Ill. Dec. 502 (Ill. 1991) (“A violation of a statute or ordinance designed to protect human life or property is prima facie evidence of negligence. . . . The violation does not constitute negligence per se, however, and therefore the defendant may prevail by showing that he acted reasonably under the circumstances.”). But the inclusion of allegations regarding violations of 625 Ill. Comp. Stat. 5/11-1408 and negligence per se do not require the dismissal of Count I or Count IV. As the Court has explained above, T.K. has sufficiently pleaded negligence claims against Defendants without the allegations relating to statutory violations. Cf. Bartholet v. Reishauer A.G. (Zurich), 953 F.2d 1073, 1078 (7th Cir. 1992) (“[T]he complaint need not identify a legal theory, and specifying an incorrect theory is not fatal.”).

2. Timothy Killings has pleaded cognizable medical expense claims against all Defendants.

Just because T.K. has cognizable negligence claims against Defendants does not mean that Timothy Killings, T.K.’s father, also has such claims. To state a [*12] negligence cause of action, Mr. Killings must plead enough facts to make it plausible that he was harmed as a proximate result of Defendants’ breach of a duty they owed to him. Allstate, 110 F. Supp. 3d at 862-63. Mr. Killings has failed to meet his burden. The fact that Defendants were responsible for T.K.’s well-being on July 17, 2015, does not mean that Defendants had any duty to Mr. Killings. See Bruntjen v. Bethalto Pizza, LLC, 2014 IL App (5th) 120245, 385 Ill. Dec. 215, 18 N.E.3d 215, 231 (Ill. App. Ct. 2014) (“The criterion in a duty analysis is whether a plaintiff and a defendant stood in such a relationship to each other that the law imposed an obligation upon the defendant to act for the protection of the plaintiff.”). It was T.K., not Mr. Killings, who was placed on an unsafe farm trailer and pulled onto a public road. Defendants therefore had a duty to exercise ordinary care to prevent injury to T.K., not Mr. Killings. Further, Mr. Killings does not claim that he was physically injured as a result of Defendants’ negligence; his only claimed injury is the money he has spent and the money he will spend in the future for T.K.’s past and future medical treatment. See Sec. Am. Complaint, ¶¶ 38-39. In short, Mr. Killings has not met the pleading requirements for a negligence claim against any Defendant.

But just because Mr. [*13] Killings has not pleaded cognizable negligence claims against Defendants does not mean that he has pleaded no cognizable claims against them. In Illinois, parents have a cause of action against a tortfeasor who injures their child and causes them to incur medical expenses. Pirrello v. Maryville Acad., Inc., 2014 IL App (1st) 133964, 386 Ill. Dec. 108, 19 N.E.3d 1261, 1264 (Ill. App. Ct. 2014). The claim is not one for damages stemming from the child’s physical injury, but one founded on the parents’ liability for the minor’s medical expenses under the Illinois Family Expense Act. Id.; see also 750 Ill. Comp. Stat. 65/15(a)(1) (obligating parents to pay for the “expenses of the family”). T.K. has pleaded cognizable negligence claims against Defendants. Mr. Killings alleges that he has been saddled with bills stemming from T.K.’s medical care, some of which he has paid, and that he will incur additional medical bills in the future as a result of the injuries T.K. suffered on account of Defendants’ negligence. Sec. Am. Complaint, ¶¶ 38-39. Mr. Killings is the father of T.K., a minor, and is required by law to pay for T.K.’s medical expenses, Mr. Killings has adequately pleaded claims against Defendants for the recovery of the amounts paid or to be paid for T.K.’s past and future medical expenses stemming from Defendants’ negligence.

One [*14] final point merits a brief discussion. In the Second Amended Complaint, Mr. Killings alleges that he has suffered, as a result of T.K.’s injuries, “loss of aid, comfort, society, companionship, pleasure, and the family relationship.” Sec. Am. Complaint, ¶ 40. However, in Illinois, a parent may not “recover for loss of the society and companionship of a child who is nonfatally injured.” Vitro v. Mihelcic, 209 Ill. 2d 76, 806 N.E.2d 632, 633, 282 Ill. Dec. 335 (Ill. 2004). Therefore, Mr. Killings has no valid claim for loss of society and companionship in this case.

3. The Court strikes paragraph 27 from Plaintiffs’ Second Amended Complaint.

As an alternative to the dismissal of Count I of the Second Amended Complaint, Defendants Decatur Boys & Girls Club and America Boys & Girls Club ask the Court to strike paragraphs 50 through 55 of the Complaint. Mot. to Dismiss (d/e 32), at 2. Similarly, Defendant Paulin asks the Court, as an alternative to the dismissal of Count IV, to strike paragraphs 76 through 81 of the Second Amended Complaint. Mot. to Dismiss (d/e 33), at 1-2. According to Defendants, the Court should strike these paragraphs because they are ultimately used to claim that Defendants’ alleged statutory violations constitute negligence per se.

Additionally, Defendants [*15] Decatur Boys & Girls Club and America Boys & Girls Club request that the Court strike paragraph 27 from the Second Amended Complaint for being duplicative of paragraph 25 and strike paragraphs 42, 43, 44, 48, 68, 69, and 70 because those paragraphs are legal conclusions. Mot. to Dismiss (d/e 32), at 4. But even assuming that the aforementioned paragraphs are legal conclusions, as opposed to factual allegations, that is no reason to strike them from the Second Amended Complaint. Although Plaintiffs are required to plead facts that indicate they have a plausible, as opposed to a speculative, right to relief, see Iqbal, 556 U.S. at 678, they are not prohibited from also pleading legal conclusions that might help to provide Defendants with notice of the claims brought against them or provide context for the factual allegations. See State Farm Mut. Auto. Ins. Co. v. Riley, 199 F.R.D. 276, 278 (N.D. Ill. 2001) (citing Neitzke v. Williams, 490 U.S. 319, 325, 109 S. Ct. 1827, 104 L. Ed. 2d 338 (1989)) (noting that “legal conclusions are an integral part of the federal notice pleading regime” and that Rule 8(b) of the Federal Rules of Civil Procedure requires parties to respond to all allegations contained within a pleading, including legal conclusions). Therefore, the Court strikes only paragraph 27 of the Second Amended Complaint, as it is duplicative of paragraph 25.

B. The Allegations of Plaintiffs’ Second Amended [*16] Complaint Are Insufficient to Render the Doctrine of Res Ipsa Loquitur Applicable Against Decatur Boys & Girls Club and America Boys & Girls Club.

Res ipsa loquitur is a rule of evidence applicable to a negligence claim, not a distinct theory of recovery. Rice v. Burnley, 230 Ill. App. 3d 987, 596 N.E.2d 105, 108, 172 Ill. Dec. 826 (Ill. App. Ct. 1992). Res ipsa loquitur allows “proof of negligence by circumstantial evidence when the direct evidence concerning cause of injury is primarily within the knowledge and control of the defendant.” Metz v. Cent. Ill. Elec. & Gas Co., 32 Ill. 2d 446, 207 N.E.2d 305, 307 (Ill. 1965). The doctrine “is meant to bridge an evidentiary gap when an injury could not have happened but for the defendant’s negligence.” Buechel v. United States, 746 F.3d 753, 765 (7th Cir. 2014). Accordingly, res ipsa loquitur applies only when the facts “admit of the single inference that the accident would not have happened unless the defendant had been negligent.” Britton v. Univ. of Chi. Hosps., 382 Ill. App. 3d 1009, 889 N.E.2d 706, 709, 321 Ill. Dec. 441 (Ill. App. Ct. 2008). Whether the doctrine of res ipsa loquitur applies is a question of law to be determined by the Court. Imig v. Beck, 115 Ill. 2d 18, 503 N.E.2d 324, 329, 104 Ill. Dec. 767 (Ill. 1986).

Under Illinois law, a plaintiff bringing a negligence claim based on the doctrine of res ipsa loquitur must plead that he was injured “in an occurrence that ordinarily does not happen in the absence of negligence” and that it was caused “by an agency or instrumentality within the defendant’s exclusive control.” Avalos-Landeros v. United States, 50 F. Supp. 3d 921, 927 (N.D. Ill. 2014) (citing Heastie v. Roberts, 226 Ill. 2d 515, 877 N.E.2d 1064, 1076, 315 Ill. Dec. 735 (Ill. 2007)). Although, in the past, [*17] a plaintiff had to allege that the “the injury occurred under circumstances indicating that it was not due to any voluntary act or neglect on the part of the plaintiff,” this requirement was removed due to the adoption of comparative fault principles in Illinois. Heastie, 877 N.E.2d at 1076. With respect to the requirement of “exclusive control,” a defendant’s control over the instrumentality “at the time of the alleged negligence is not defeated by lack of control at the time of the injury.” Darrough v. Glendale Heights Cmty. Hosp., 234 Ill. App. 3d 1055, 600 N.E.2d 1248, 1252-53, 175 Ill. Dec. 790 (Ill. App. Ct. 1992). Indeed, the doctrine of res ipsa loquitur can be appropriate if the instrument that caused the injury was in the defendant’s exclusive control “at a time prior to the injury and there is no change in conditions or intervening act that could reasonably have caused the event resulting in the injury.” Id. at 1253.

T.K. alleges that “a minor child under the care and supervision of a registered, licensed professional child care facility does not ordinarily sustain serious injuries when properly supervised in the absence of negligence.” Sec. Am. Complaint, ¶ 60. Further, T.K. claims that at the time he sustained his injuries, the farm trailer that injured him was under the exclusive control of Decatur Boys & Girls Club and America Boys [*18] & Girls Club. Id. ¶ 61. These allegations are not sufficient to render the doctrine of res ipsa loquitur applicable here. See Twombly, 550 U.S. at 545 (noting that “a formulaic recitation of a cause of action’s elements” will not withstand a Rule 12(b)(6) motion to dismiss). And although the Second Amended Complaint contains numerous factual allegations regarding the incident in which T.K. was injured, those allegations do not indicate a plausible right to relief for T.K. under the doctrine of res ipsa loquitur.

Because the facts pleaded in Plaintiffs’ Second Amended Complaint provide no support for the second prong in the res ipsa loquitur analysis–whether an injury was caused by an object within the defendant’s exclusive control–the Court’s res ipsa loquitur analysis will begin and end with that prong. Even assuming that the incident in which T.K. was injured was one that does not ordinarily occur in the absence of negligence, T.K.’s account of the circumstances surrounding the accident indicate that it was Defendant Paulin, not Decatur Boys & Girls Club or America Boys & Girls Club, who had exclusive control of the farm trailer. According to the Second Amended Complaint, the farm trailer that injured T.K. was owned [*19] by Defendant Paulin and located on Defendant Paulin’s property. Defendant Paulin was the one who pulled the trailer onto a public road with T.K. and several other minor children on board. Defendant Paulin owned the tractor with which the trailer was pulled. Although T.K. claims that Decatur Boys & Girls Club and America Boys & Girls Club were responsible for placing him on the farm trailer, he makes the same allegation with respect to Defendant Paulin. See Sec. Am. Complaint, ¶¶ 22-23. In short, there is nothing in the Second Amended Complaint to support T.K.’s allegation that Decatur Boys & Girls Club and America Boys & Girls Club were in exclusive control of the farm trailer at any time.

Based on this analysis, the Court has determined that the factual allegations of the Second Amended Complaint are not sufficient to render the doctrine of res ipsa loquitur applicable. In doing so, the Court again notes that res ipsa loquitur is an evidentiary rule, not a distinct theory of recovery. If facts uncovered through the discovery process sufficiently support the application of res ipsa loquitur against any Defendant, the Court will allow T.K. to rely on the doctrine at the summary judgment [*20] stage and will allow the trier of fact to consider and apply the doctrine as to that Defendant.

C. Count III and Count V Sufficiently Plead Willful and Wanton Misconduct Claims Against the Defendants.

To state a claim under Illinois law for willful and wanton misconduct, a plaintiff must plead facts establishing the elements of a negligence claim–duty, breach, proximate causation, and harm–and “either a deliberate intention to harm or an utter indifference to or conscious disregard for the welfare of the plaintiff.” Kirwan v. Lincolnshire-Riverwoods Fire Protections Dist., 349 Ill. App. 3d 150, 811 N.E.2d 1259, 1263, 285 Ill. Dec. 380 (Ill. App. Ct. 2004) (quoting Adkins v. Sarah Bush Lincoln Health Ctr., 129 Ill. 2d 497, 544 N.E.2d 733, 743, 136 Ill. Dec. 47 (Ill. 1989)). As noted above, T.K. has sufficiently pleaded negligence causes of action against all Defendants. T.K. has incorporated the allegations comprising his negligence claims into his willful and wanton misconduct claims against Defendants. Therefore, to state claims for willful and wanton misconduct against Defendants, T.K. need only additionally allege either intentional or reckless willful and wanton misconduct committed by Defendants. Reckless willful and wanton misconduct is conduct committed with an utter indifference of or a conscious disregard for the safety of others. Kirwan, 811 N.E.2d at 1263. To meet this standard, the defendant “must be conscious of his conduct, [*21] and, though having no intent to injure, must be conscious, from his knowledge of the surrounding circumstances and existing conditions, that his conduct will naturally and probably result in injury.” Id.

In the Second Amended Complaint, T.K. alleges that on July 17, 2015, Decatur Boys & Girls Club and America Boys & Girls Club placed him and 15 to 20 other minors on an unsafe farm trailer with no guardrails, sidewalls, barriers, or seats while providing inadequate supervision. Sec. Am. Complaint, ¶¶ 22, 65. T.K. further alleges that the trailer was not designed to transport people. Id. ¶ 24. T.K claims that Decatur Boys & Girls Club and America Boys & Girls Club failed to take necessary safety precautions and operated their summer camp recklessly or with gross negligence. Id. ¶¶ 64, 68. According to T.K., the actions and inaction of Decatur Boys & Girls Club and America Boys & Girls Club were “willful, wanton, grossly negligent, careless, [and] reckless” and “showed an utter indifference to or conscious disregard for the safety of [T.K.].” Id. ¶ 70.

T.K. also includes several allegations in Count III about what Decatur Boys & Girls Club and America Boys & Girls Club “knew or should have [*22] known.” Specifically, according to T.K., Decatur Boys & Girls Club and America Boys & Girls Club knew or should have known that the farm trailer was unreasonably dangerous, that additional supervision was required for the 15 to 20 children riding on the farm trailer, and that there was no way for the children to be properly seated on the farm trailer. Id. ¶¶ 66-68. Decatur Boys & Girls Club and America Boys & Girls Club also knew or should have known that placing children on the farm trailer and pulling it with a tractor without proper supervision posed a high probability of serious physical harm to T.K. Id. ¶ 69.

With respect to Defendant Paulin, T.K. alleges that Defendant Paulin placed T.K. on a farm trailer that was not designed or intended to transport people and had no guardrails, seats, or seat belts to prevent people from falling off it. Id. ¶¶ 23, 25-26. Further, T.K. claims that Defendant Paulin had no intention of making sure that T.K. was safe when she placed him on the farm trailer and pulled it onto a public road. Id. ¶ 83. T.K. also claims that Defendant Paulin failed to take necessary safety precautions. Id. ¶ 85. Defendant Paulin’s conduct, according to T.K., was “willful, [*23] wanton, grossly negligent, careless, [and] reckless” and showed a “conscious disregard for the safety of [T.K.].” Id. ¶ 87.

As with Decatur Boys & Girls Club and America Boys & Girls Club, T.K. includes allegations in the Second Amended Complaint regarding what Defendant Paulin “knew or should have known.” Specifically, T.K. alleges that Defendant Paulin knew or should have known that the farm trailer was unreasonably dangerous, that pulling children onto a public road while on the trailer was unreasonably dangerous, and that placing children on the farm trailer and pulling the trailer onto a public roadway without proper supervision posed a high probability of serious physical harm or death. Id. ¶¶ 83-84, 86.

T.K.’s allegations are sufficient to plead willful and wanton misconduct claims against Defendants. The Federal Rules of Civil Procedure require that a pleading include “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. Pro. 8(a)(2). A plaintiff need not plead enough facts to show that he is likely to prevail on his claim; rather, he is required only to include enough facts to raise his claim from speculative to plausible. See Iqbal, 556 U.S. at 678. The allegations set forth [*24] above are sufficient to make it plausible that Defendants committed willful and wanton misconduct when they put T.K. on an unsafe farm trailer not designed for transporting people, failed to take necessary safety precautions, and either failed to properly supervise T.K. or pulled the trailer, with T.K. on it, onto a public road. See Worthem v. Gillette Co., 774 F. Supp. 514, 517 (N.D. Ill. 1991) (holding that the plaintiff had sufficiently pleaded willful and wanton misconduct claims where she alleged that “willful and wanton acts or omissions [were] committed or omitted with conscious indifference to existing circumstances and conditions” and went on to “enumerate specific instances of willful and wanton conduct”).

Although T.K.’s “knew or should have known” allegations against Defendants may have been insufficient to meet his pleading burden with respect to willful and wanton misconduct claims, see id. (admitting that the court “might agree” with the defendant’s arguments that “knew or should have known” allegations are mere negligence allegations insufficient to merit punitive damages), T.K. does not rely solely on these allegations in his willful and wanton misconduct claims against Defendants. Indeed, as the Court has noted above, Count III [*25] and Count V of the Second Amended Complaint, which incorporate the allegations from the counts preceding them, contain specific factual allegations regarding the actions Defendants took. Further, the Court does not view T.K.’s “knew or should have known” allegations as completely irrelevant to a willful and wanton misconduct claim under Illinois law, which holds that willful and wanton misconduct can be found where there is a failure to discover a danger through carelessness when it could have been discovered through the exercise of ordinary care. Ziarko v. Soo Line R.R. Co., 161 Ill. 2d 267, 641 N.E.2d 402, 406, 204 Ill. Dec. 178 (Ill. 1994).

The fact that T.K. bases his willful and wanton claims on the same facts as his negligence claims is of no concern. Under Illinois law, “[t]he same acts by a defendant, if sufficiently egregious, can constitute both negligence and willful and wanton conduct.” Bastian v. TPI Corp., 663 F. Supp. 474, 476 (N.D. Ill. 1987) (citing Smith v. Seiber, 127 Ill. App. 3d 950, 469 N.E.2d 231, 235, 82 Ill. Dec. 697 (Ill. App. Ct. 1984). Therefore, “one can plead the same facts in two counts, one characterizing them as negligence and the other as willful and wanton conduct, if the same facts could support both theories.” Bastian, 663 F. Supp. at 476 (citing O’Brien v. Twp. High Sch. Dist. 214, 83 Ill. 2d 462, 415 N.E.2d 1015, 1018, 47 Ill. Dec. 702 (Ill. 1980).

V. CONCLUSION

For the foregoing reasons, Defendants Boys & Girls Club of America and Boys & Girls Club of Decatur, Inc.’s Combined Rule 12(b)(6) Motion to Dismiss Complaint and Alternative Rule 12(f) Motion [*26] to Strike Portions of Count I of the Second Amended Complaint (d/e 32) is GRANTED IN PART and DENIED IN PART. Count II of Plaintiffs’ Second Amended Complaint is DISMISSED WITHOUT PREJUDICE. Further, the Court STRIKES paragraph 27 of Plaintiffs’ Second Amended Complaint as duplicative. Defendant Mary K. Paulin’s Combined Rule 12(b)(6) Motion to Dismiss Complaint and Alternative Rule 12(f) Motion to Strike Portions of Count IV of the Second Amended Complaint (d/e 33) is DENIED. Pursuant to Rule 12(a)(4)(A) of the Federal Rules of Civil Procedure, Defendants have 14 days from the date they receive a copy of this Order to file an answer to Plaintiffs’ Second Amended Complaint.

ENTER: June 6, 2017.

/s/ Sue E. Myerscough

SUE E. MYERSCOUGH

UNITED STATES DISTRICT JUDGE


Rarely do you see recreation or release cases from the District of Columbia; in this case, the appellate court upheld the release for an injury in a gym

Plaintiff’s arguments about the release and attempt to invalidate the release by claiming gross negligence all failed.

Moore v. Waller, et al., 930 A.2d 176; 2007 D.C. App. LEXIS 476

State: District of Columbia, District of Columbia Court of Appeals

Plaintiff: Richard J. Moore

Defendant: Terrell Waller and Square 345 Limited Partnership T/A Grand Hyatt Hotel

Plaintiff Claims: negligence

Defendant Defenses: Release

Holding: for the defendant health club

Year: 2007

The plaintiff was a member of the exercise facility and had signed a release when he joined. One day while at the facility to exercise, he was asked by a kick boxing instructor to hold an Everlast body bag so the instructor could demonstrate kicks to the class. The plaintiff reluctantly did so.

The kick boxing instructor showed the plaintiff how to hold the bag. The instructor then kicked the bag five times in rapid succession. The plaintiff was out of breath after the demonstration and stated with irony that it was not hard to do.

A month after the class the plaintiff determined he had been injured from holding the bag and sued.

The defendants motioned for summary judgment with the trial court which was granted, and the plaintiff appealed.

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

The court stated that it did not often look at releases in this context. The court looked at Maryland and other states for their laws concerning releases as well as the release law in DC, which was mostly in other types of business contracts.

DC like most other states will not allow a release to stop claims for “intentional harms or for the more extreme forms of negligence, i.e., reckless, wanton, or gross [negligence].” The plaintiff did not argue the acts of the defendant were grossly negligent, but did argue the acts were reckless.

However, the court could find nothing in the pleadings that indicated the defendant’s actions were reckless. In fact, the pleadings found the instructors efforts to show the plaintiff how to hold the bag was for safety purposes and as such; safety is inconsistent with recklessness or gross negligence.

The appellate court also looked at the release itself and found it was clear and unambiguous.

…”exculpation must be spelled out with such clarity that the intent to negate the usual consequences of tortious conduct is made plain”; also recognizing that in most circumstances modern law “permit[s] a person to exculpate himself by contract from the legal consequences of his negligence”

The plaintiff also argued the release was written so broadly that it was written to cover reckless or gross negligence and as such should be thrown out. However, the court looked at the issue in a different way. Any clause in a release that attempts to limit the liability for gross negligence is not valid; however, that does not invalidate the entire release.

We disagree. “‘A better interpretation of the law is that any “term” in a contract which at-tempts to exempt a party from liability for gross negligence or wanton conduct is unenforceable, not the entire [contract].

This is the acceptable way under contract law to deal with clauses or sections that are invalid. However, many contracts have clauses that say if any clause is invalid only that clause can be thrown out; the entire contract is still valid.

DC recognizes that some releases can be void if they reach too far.

We, of course, would not enforce such a release if doing so would be against public policy. “An exculpatory clause [in a will] that excuses self-dealing [by the personal representative] or attempts to limit liability for breaches of duty committed in bad faith, intentionally, or with reckless indifference to the interest of the beneficiary, is generally considered to be against public policy.”)

However, releases found within health club agreements do not violate public policy.

However, we agree with the Maryland Court of Special Appeals and with numerous other courts which have held that it does not violate public policy to enforce exculpatory clauses contained in membership contracts of health clubs and fitness centers.

The appellate court upheld the decision of the trial court.

So Now What?

This decision does not leap with new information or ideas about releases. What is reassuring are two points. The first is releases are valid in DC. The second is when in doubt the court looked to Maryland, which has held that a release signed by a parent can stop a minor’s right to sue. See States that allow a parent to sign away a minor’s right to sue.

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

What do you think? Leave a comment.

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Author: Outdoor Recreation Insurance, Risk Management and Law

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Moore v. Waller, et al., 930 A.2d 176; 2007 D.C. App. LEXIS 476

Moore v. Waller, et al., 930 A.2d 176; 2007 D.C. App. LEXIS 476

Richard J. Moore, Appellant, v. Terrell Waller and Square 345 Limited Partnership T/A Grand Hyatt Hotel, Appellees.

No. 05-CV-695

DISTRICT OF COLUMBIA COURT OF APPEALS

930 A.2d 176; 2007 D.C. App. LEXIS 476

June 20, 2006, Argued

August 2, 2007, Decided

PRIOR HISTORY:  [**1]

Appeal from the Superior Court of the District of Columbia. (CA-1522-04). (Hon. Michael L. Rankin, Trial Judge).

COUNSEL: John P. Fatherree for appellant.

Terrell Waller, Pro se.

Rocco P. Porreco for appellee, Square 345 Limited Partnership.

JUDGES: Before GLICKMAN, KRAMER, and FISHER, Associate Judges.

OPINION BY: FISHER

OPINION

[*177]  FISHER, Associate Judge: Appellant Richard Moore claims that he was injured on February 26, 2001, while participating in a demonstration of kick boxing at Club Fitness, which is operated by the appellee, Square 345 Limited Partnership (hereinafter Grand Hyatt). Relying on a waiver and release of liability Moore signed when he joined the fitness center, the Superior Court granted summary judgment, first for Grand Hyatt and then for Terrell Waller, the instructor who allegedly injured Moore. We affirm.

I.

Plaintiff Moore alleged that he had gone to the fitness center on February 26, 2001, to exercise. Although “he was not participating in the kick boxing classes, the instructor [*178]  , defendant Waller, asked [Moore] to hold . . . a detached Everlast body bag, so [Mr.] Waller could demonstrate a kick to his class.” According to Mr. Moore, he “reluctantly agreed, saying to [Mr. Waller], ‘Not hard.’ Defendant  [**2] Waller showed [Mr. Moore] how to hold the bag, braced against his body, and then kicked the bag five times, in rapid succession, with great force.” He claims that when Waller finished, “he was out of breath from the strenuous effort, and commented with obvious sarcasm and irony, ‘That wasn’t hard, was it.'” Moore states that he “immediately felt trauma to his body,” felt “stiff and achy” the next day, and consulted a physician about one month later. Mr. Moore asserts that “[h]e has been diagnosed as having torn ligaments and tendons from the trauma of the injury, and may have neurological damage, as well.” The resulting limitations on his physical activity allegedly have diminished the quality of his life in specified ways.

Mr. Moore had joined the fitness center on January 16, 2001, signing a membership agreement and initialing that portion of the agreement that purports to be a waiver and release of liability.

Article V – WAIVER AND LIABILITY

Section 1. The Member hereby acknowledges that attendance at or use of the Club or participation in any of the Club’s activities or programs by such Member, including without limitation, the use of the Club’s equipment and facilities, . . . exercises  [**3] (including the use of the weights, cardiovascular equipment, and apparatus designed for exercising), [and] selection of exercise programs, methods, and types of equipment, . . . could cause injury to the Member or damage to the Member’s personal property. As a material consideration for the Club to enter into this Agreement, to grant membership privileges hereunder and to permit the Member and the Member’s guests to use the Club and its facilities, the Member, on its own behalf and on behalf of the Member’s guests, agrees to assume any and all liabilities associated with the personal injury, death, property loss or other damages which may result from or arise out of attendance at or use of the Club or participation in any of the Club’s programs or activities, notwithstanding any consultation on any exercise programs which may be provided by employees of the Club.

By signing this Agreement, the Member understands that the foregoing waiver of liability on its behalf and on the behalf of the Member’s guests will apply to any and all claims against the Club and/or its owners, shareholders, officers, directors, employees, agents or affiliates . . . for any such claims, demands, personal  [**4] injuries, costs, property loss or other damages resulting from or arising out of any of foregoing risks at the Club, the condominium or the associated premises.

The Member hereby, on behalf of itself and the Member’s heirs, executors, administrators, guests and assigns, fully and forever releases and discharges the Club and the Club affiliates, and each of them, from any and all claims, damages, demands, rights of action or causes of action, present or future, known or unknown, anticipated or unanticipated resulting from or arising out of the attendance at or use of the Club or their participation in any of the Club’s activities or programs by such Member, including those which arise out of the negligence of the Club and/or the Club and the Club affiliates from any and all liability for any loss, or theft of, or damage to personal property, including, without limitation, automobiles and the contents of lockers.

 [*179]  THE MEMBER, BY INITIALING BELOW, ACKNOWLEDGES THAT HE/SHE HAS CAREFULLY READ THIS WAIVER AND RELEASE AND FULLY UNDERSTANDS THAT IT IS A WAIVER AND RELEASE OF LIABILITY, AND ASSUMES THE RESPONSIBILITY TO INFORM HIS/HER GUESTS OF THE PROVISIONS OF THIS AGREEMENT.

If effective,  [**5] this provision waives and releases not only claims against the Club but also claims against its “employees [and] agents.” 1

1 We assume for purposes of analysis that the Grand Hyatt is responsible for the conduct of Mr. Waller at issue here, but we need not determine whether he was an employee or an independent contractor.

Ruling on Grand Hyatt’s motion for summary judgment, the trial court concluded:

The Waiver and Liability section of the contract . . . expresses a full and complete release of all liability for personal injury occurring in the fitness center. Moore signed an acknowledgment indicating that [he] had read and understood that he was releasing Grand Hyatt from all liability for personal injuries that he might sustain. Furthermore, there is no allegation of fraud or overreaching in the amended complaint. In the circumstances, the court finds that the waiver and release is valid and enforceable and is a complete defense for Grand Hyatt in this action.

The court later held “that the terms of the waiver . . . apply equally to defendant Terrell Waller….”

II.

This court has not often addressed the validity of exculpatory clauses in contracts. We have enforced them, however. For  [**6] example, “[i]t is well settled in this jurisdiction that a provision in a bailment contract limiting the bailee’s liability will be upheld in the absence of gross negligence, willful act, or fraud.” Houston v. Security Storage Co., 474 A.2d 143, 144 (D.C. 1984). Accord, Julius Garfinckel & Co. v. Firemen’s Insurance Co., 288 A.2d 662, 665 (D.C. 1972) (“gross negligence or willful misconduct”); Manhattan Co. v. Goldberg, 38 A.2d 172, 174 (D.C. 1944) (“a bailee may limit his liability except for gross negligence”). We recently considered such a clause contained in a home inspection contract and concluded that it would be sufficient to waive or limit liability for negligence. Carleton v. Winter, 901 A.2d 174, 181-82 (D.C. 2006). However, after surveying “leading authorities” and cases from other jurisdictions, we recognized that “courts have not generally enforced exculpatory clauses to the extent that they limited a party’s liability for gross negligence, recklessness or intentional torts.” Id. at 181. See also Wolf v. Ford, 335 Md. 525, 644 A.2d 522, 525 (Md. 1994) ( [HN1] “a party will not be permitted to excuse its liability for intentional harms or for the more extreme forms of negligence, i.e., reckless,  [**7] wanton, or gross”); Seigneur v. National Fitness Institute, Inc., 132 Md. App. 271, 752 A.2d 631, 638 (Md. Ct. Spec. App. 2000) (exculpatory clause will not be enforced “when the party protected by the clause intentionally causes harm or engages in acts of reckless, wanton, or gross negligence”). In Carleton, the court remanded for further proceedings to determine whether the conduct of the defendants “was not just simple negligence, but rather gross negligence.” 901 A.2d at 182.

As Moore’s counsel conceded at oral argument, he does not claim that Waller intentionally or purposefully injured  [*180]  him. The complaint does allege reckless conduct, however, 2 and he argued to the trial court, as he does to us, that the fitness center could not exempt itself from liability for reckless or wanton behavior or gross negligence. Nevertheless, the defendants had moved for summary judgment, and  [HN2] “[m]ere conclusory allegations on the part of the non-moving party are insufficient to stave off the entry of summary judgment.” Musa v. Continental Insurance Co., 644 A.2d 999, 1002 (D.C. 1994); see also Super. Ct. Civ. R. 56 (e) (“the . . . response, by affidavits or as otherwise provided in this Rule, must set forth specific  [**8] facts showing that there is a genuine issue for trial”). “‘[T]here is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.'” Brown v. George Washington Univ., 802 A.2d 382, 385 (D.C. 2002) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986)). “‘The mere existence of a scintilla of evidence . . . will be insufficient; there must be evidence on which the jury could reasonably find for the [non-moving party].'” LaPrade v. Rosinsky, 882 A.2d 192, 196 (D.C. 2005) (quoting Liberty Lobby, 477 U.S. at 252).

2 In his second amended complaint, Moore alleged that “defendant Waller recklessly disregarded [his] duty of due care [and] acted with deliberate indifference to the likelihood that his action would injure the plaintiff. Defendant Waller’s reckless action was the direct and proximate cause of plaintiff’s injuries.” He also alleged that the Grand Hyatt was responsible for Waller’s actions.

Nothing Moore presented in opposition to summary judgment would be sufficient to prove gross negligence or reckless conduct. Indeed, in one of his affidavits Mr. Moore stated that “as I was shown by defendant  [**9] Waller exactly how to hold the body bag while he demonstrated his kick(s), the purpose of his directions as communicated to me as to how to hold the bag were plainly for safety.” Such concern for safety is inconsistent with recklessness or gross negligence. See generally In re Romansky, 825 A.2d 311, 316 (D.C. 2003) (defining “recklessness”); District of Columbia v. Walker, 689 A.2d 40, 44 (D.C. 1997) (defining “gross negligence” for purposes of D.C. Code § 2-412 (2001) (formerly D.C.Code § 1-1212 (1981)). Moreover, Moore did not allege that defendant Waller kicked an unprotected portion of his body. Nor did he proffer expert testimony suggesting that the demonstration was so hazardous that it was reckless to undertake it, even with the protection of the Everlast body bag.

Because there is no viable claim for gross negligence, recklessness, or an intentional tort, we turn to the question of whether this particular contractual provision is sufficient to bar claims for negligence. 3 Although this is a suit for personal [*181]  injury, not merely for economic damage, the same principles of law apply. See Wright v. Sony Pictures Entertainment, Inc., 394 F. Supp. 2d 27, 34 (D.D.C. 2005) (“by voluntarily  [**10] signing the Contestant Release Form, plaintiff waived his right to bring any claims for negligently caused personal injury”; applying District of Columbia law). This court has not previously considered the effect of an exculpatory clause in a membership agreement with a health club or fitness center, but many jurisdictions have done so. After surveying the legal landscape, the Maryland Court of Special Appeals concluded that most courts hold “that  [HN3] health clubs, in their membership agreements, may limit their liability for future negligence if they do so unambiguously.” Seigneur, 752 A.2d at 636. We have found the analysis in Seigneur to be very helpful.

3 Appellant’s brief explains that he “claims damages from Waller based upon negligent infliction of injury, and against Square 345 Limited Partnership based upon respondeat superior and upon apparent agency and authority, as well as negligent failure to properly select, train and supervise a person whose services were retained to provide lessons in an activity which would certainly be dangerous if not expertly and responsibly performed.” He later elaborates: “While kick boxing is an inherently dangerous activity, had the demonstration  [**11] been conducted in a responsible, non-negligent way, it would not have been dangerous.” The words “strict liability” appear under the caption of the second amended complaint, but appellant has not cited any statute or regulation that purports to impose strict liability on demonstrations of kick boxing, nor has he alleged the common law elements of strict liability in tort. See Word v. Potomac Electric Power Co., 742 A.2d 452, 459 (D.C. 1999). Neither has he proffered facts which would support such a theory. In sum, the waiver is sufficient to cover any theory of liability which is supported by more than conclusory allegations.

 [HN4] A fundamental requirement of any exculpatory provision is that it be clear and unambiguous. Maiatico v. Hot Shoppes, Inc., 109 U.S. App. D.C. 310, 312, 287 F.2d 349, 351 (1961) (“exculpation must be spelled out with such clarity that the intent to negate the usual consequences of tortious conduct is made plain”; also recognizing that in most circumstances modern law “permit[s] a person to exculpate himself by contract from the legal consequences of his negligence”). Cf. Adloo v. H.T. Brown Real Estate, Inc., 344 Md. 254, 686 A.2d 298, 305 (Md. 1996) (“Because it does not clearly,  [**12] unequivocally, specifically, and unmistakably express the parties’ intention to exculpate the respondent from liability resulting from its own negligence, the clause is insufficient for that purpose.”). The provision at issue here meets the requirement of clarity. Article V is entitled, in capital letters, “WAIVER AND LIABILITY.” The Article ends with a prominent “box” containing a sentence typed in capital letters. Appellant Moore initialed that box, verifying that he had “carefully read this waiver and release and fully understands that it is a waiver and release of liability . . . .” By accepting the terms of membership, Moore “agree[d] to assume any and all liabilities associated with the personal injury, death, property loss or other damages which may result from or arise out of attendance at or use of the Club or participation in any of the Club’s programs or activities . . . .” He understood that this waiver of liability would “apply to any and all claims against the Club and/or its owners, shareholders, officers, directors, employees, agents or affiliates . . . for any . . . personal injuries . . . resulting from or arising out of any of [the] foregoing risks at the Club .  [**13] . . .” He “release[d] and discharge[d] the Club . . . from any and all claims, damages, demands, rights of action or causes of action…, including those which arise out of the negligence of the Club . . . .” This release is conspicuous and unambiguous, and it is clearly recognizable as a release from liability. Moreover, the injuries alleged here were reasonably within the contemplation of the parties. “Because  [HN5] the parties expressed a clear intention to release liability and because that release clearly included liability for negligence, that intention should be enforced.” Anderson v. McOskar Enterprises, Inc., 712 N.W.2d 796, 801 (Minn. Ct. App. 2006) (health and fitness club). 4

4 Because this waiver expressly refers to “claims . . . which arise out of the negligence of the Club,” its effect is clear. We have held, however, that it is not always necessary to use the word “negligence” in order to relieve a party of liability for such conduct. See Princemont Construction Corp. v. Baltimore & Ohio R.R. Co. 131 A.2d 877, 878 (D.C. 1957) (“the terms of an indemnity agreement may be so broad and comprehensive that although it contains no express stipulation indemnifying against a party’s  [**14] own negligence, it accomplishes the same purpose”); see also Avant v. Community Hospital, 826 N.E.2d 7, 12 (Ind. Ct. App. 2005)( [HN6] “an exculpatory clause need not include the word ‘negligence’ so long as it conveys the concept specifically and explicitly through other language”).

 [*182]  Appellant protests that the waiver provisions are so broad that they could be construed to exempt the Club from liability for harm caused by intentional torts or by reckless or grossly negligent conduct. Because such provisions are unenforceable, he argues that the entire release is invalid. We disagree. “‘A better interpretation of the law is that  [HN7] 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].'” Anderson, 712 N.W.2d at 801 (quoting Wolfgang v. Mid-American Motorsports, Inc., 898 F. Supp. 783, 788 (D. Kan. 1995) (which in turn quotes RESTATEMENT (SECOND) OF CONTRACTS § 195(1) (1981) (“A term exempting a party from tort liability for harm caused intentionally or recklessly is unenforceable on grounds of public policy.” (emphasis added))). See Ellis v. James V. Hurson Associates, Inc., 565 A.2d 615, 617 (D.C. 1989)  [**15] (“The Restatement sets forth the relevant principles. Where less than all of an agreement is unenforceable on public policy grounds, a court may nevertheless enforce the rest of the agreement ‘in favor of a party who did not engage in serious misconduct.'” (quoting RESTATEMENT (SECOND) OF CONTRACTS § 184(1) (1981))).

Nor is Article V (the waiver and release) unenforceable due to unequal bargaining power, as Mr. Moore asserts. We do not suppose that the parties in fact had equal power, but Moore does not meet the criteria for invalidating a contract on the grounds he invokes. He does not invite our attention to any evidence that he objected to the waiver provision or attempted to bargain for different terms. Nor has he shown that the contract involved a necessary service.

 [HN8] 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. There must be a showing that the parties were greatly disparate in bargaining power, that there was no opportunity for negotiation and that the services could not be obtained elsewhere.

Schlobohm v. Spa Petite, Inc., 326 N.W.2d 920, 924-25 (Minn. 1982) (emphasis in  [**16] original). “Health clubs do not provide essential services[,]” Shields v. Sta-Fit, Inc., 79 Wn. App. 584, 903 P.2d 525, 528 (Wash. Ct. App. 1995), and “[t]he Washington metropolitan area . . . is home to many exercise and fitness clubs.” Seigneur, 752 A.2d at 639 (rejecting argument that patron’s bargaining position was grossly disproportionate to that of the fitness club).

We, of course, would not enforce such a release if doing so would be against public policy. See Godette v. Estate of Cox, 592 A.2d 1028, 1034 (D.C. 1991) ( [HN9] “An exculpatory clause [in a will] that excuses self-dealing [by the personal representative] or attempts to limit liability for breaches of duty committed in bad faith, intentionally, or with reckless indifference to the interest of the beneficiary, is generally considered to be against public policy.”); George Washington Univ. v. Weintraub, 458 A.2d 43, 47 (D.C. 1983) (exculpatory clause in lease was ineffective to waive tenants’ rights under implied warranty of habitability); see also Wolf v. Ford, 335 Md. 525, 644 A.2d 522, 526 (Md. 1994) (public policy will not permit exculpatory agreements in certain transactions affecting the performance of a public service obligation or “so important [*183]   [**17] to the public good that an exculpatory clause would be patently offensive”). However, we agree with the Maryland Court of Special Appeals and with numerous other courts which have held that it does not violate public policy to enforce exculpatory clauses contained in membership contracts of health clubs and fitness centers. Seigneur, 752 A.2d at 640-41 (and cases cited therein); see also, e.g., Schlobohm, 326 N.W.2d at 926 (“the exculpatory clause in the contract before us was not against the public interest”); Ciofalo v. Vic Tanney Gyms, Inc., 10 N.Y.2d 294, 177 N.E.2d 925, 927, 220 N.Y.S.2d 962 (N.Y. 1961) (“there is no special legal relationship and no overriding public interest which demand that this contract provision, voluntarily entered into by competent parties, should be rendered ineffectual”); Massengill v. S.M.A.R.T. Sports Medicine Clinic, P.C., 996 P.2d 1132 (Wyo. 2000). 5

5 The Supreme Court of Wisconsin refused to enforce one such clause on grounds of public policy. Atkins v. Swimwest Family Fitness Center, 2005 WI 4, 277 Wis. 2d 303, 691 N.W.2d 334 (Wis. 2005). That decision was based on several factors, however, and we do not understand the court to have announced a categorical rule. See id. at 340-42 (waiver was “overly broad  [**18] and all-inclusive,” the word “negligence” was not included, the provision was not “sufficiently highlight[ed],” and there was “no opportunity to bargain”).

The trial court properly held that “the waiver and release is valid and enforceable and is a complete defense for Grand Hyatt [and Mr. Waller] in this action.” The judgment of the Superior Court is hereby

Affirmed.

 


New Minnesota statute attempted to eliminate releases and thankfully, might have made release law in MN better

Thankfully, law does not change anything and to some extent, helps to reinforce releases in Minnesota and releases for minors.

Several attempts were made this year to eliminate releases in Minnesota. The statute specifically includes recreational activities in its language. The result signed into law prevents releases from relieving liability for greater than ordinary negligence.

Even if the language is in the release the language is severable, which means it does not void the release, just the specific language.

However, the law does not change anything because greater than ordinary negligence, gross, will, wanton or intentional negligence, have never been covered by a release.

Here is the new statute.

JUDICIAL PROOF

CHAPTER 604.  CIVIL LIABILITY

ACTIONS INVOLVING FAULT GENERALLY

Minn. Stat. § 604.055 (2014)

604.055 WAIVER OF LIABILITY FOR NEGLIGENT CONDUCT

   Subdivision 1.  Certain agreements are void and unenforceable. –An agreement between parties for a consumer service, including a recreational activity, that purports to release, limit, or waive the liability of one party for damage, injuries, or death resulting from conduct that constitutes greater than ordinary negligence is against public policy and void and unenforceable.

The agreement, or portion thereof, is severable from a release, limitation, or waiver of liability for damage, injuries, or death resulting from conduct that constitutes ordinary negligence or for risks that are inherent in a particular activity.

Subd. 2.  Party or parties. –For the purposes of this section, “party” or “parties” includes a person, agent, servant, or employee of that party or parties, and includes a minor or another who is authorized to sign or accept the agreement on behalf of the minor.

Subd. 3.  Other void and unenforceable agreements. –This section does not prevent a court from finding that an agreement is void and unenforceable as against public policy on other grounds or under other law.

Subd. 4.  Nonapplication to certain claims. –This section does not apply to claims against the state pursuant to section 3.736 or a municipality pursuant to section 466.02.

HISTORY:  2013 c 118 s 1

NOTES:

The good news is the definition of a party to the release includes a “…minor or another who is authorized to sign or accept the agreement on behalf of the minor. That adds more support to Minnesota law, which has allowed a parent to sign away a minor’s right to sue. See Minnesota decision upholds parent’s right to sign away a minor’s right to sue.

Greater interest is the rest of the definition of a party. “…accept the agreement on behalf of the minor.” Can a Scoutmaster or Little League coach who has been told by the minor’s parents you can sign stuff for my kid, release someone from liability? Legally, it seems like a stretch, but this is the best argument I’ve ever seen for such actions.

The bill appears to be a compromise from an attempt to eliminate releases totally and after the arguments, this was the result. Thank heavens!

This does  one thing; it legislatively states that releases are OK. You can’t argue now, that releases are void in Minnesota for any legislative reason. And maybe someone other than a parent can sign away a minor’s right to sue.

What do you think? Leave a comment.

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Herbst et al. v. The Guilford Yatch Club Association, Inc. et al., 2009 Conn. Super. LEXIS 765

Herbst et al. v. The Guilford Yatch Club Association, Inc. et al., 2009 Conn. Super. LEXIS 765
Sharon Herbst et al. v. The Guilford Yatch Club Association, Inc. et al.
NNHCV085022625S
SUPERIOR COURT OF CONNECTICUT, JUDICIAL DISTRICT OF NEW HAVEN AT NEW HAVEN
2009 Conn. Super. LEXIS 765
March 30, 2009, Decided
March 31, 2009, Filed

NOTICE: THIS DECISION IS UNREPORTED AND MAY BE SUBJECT TO FURTHER APPELLATE REVIEW. COUNSEL IS CAUTIONED TO MAKE AN INDEPENDENT DETERMINATION OF THE STATUS OF THIS CASE.
JUDGES: [*1] John F. Cronan, J.
OPINION BY: John F. Cronan
OPINION
FACTS
This personal injury action was commenced on August 14, 2008, by plaintiff Sharon Herbst, via service of writ, summons and complaint on the agents for service of defendants Guilford Yacht Club Association, Inc. and Unit Owners Association at Guilford Yacht Club, Inc. The plaintiff alleges that she suffered serious injuries when, as a business invitee of the defendants, she was thrown off of a malfunctioning bicycle owned and maintained by the defendants.
The plaintiff’s ten-count complaint alleges five counts against each defendant, with counts six through ten re-alleging the facts and claims in counts one through five. Counts one and six allege negligence for failure to inspect, maintain, house, and test the defective bicycle, failure to warn that the bike was unsafe, and failure to provide the plaintiff with a helmet or access to helmets. Counts two and seven allege loss of consortium on the part of Richard Herbst, husband of plaintiff Sharon Herbst. 1 Counts three and eight allege recklessness for the same acts or omissions described in counts one and six. Counts four and nine allege Connecticut Unfair Trade Practices Act (CUTPA) 2 violations [*2] on the ground that the defendants advertised free use of bicycles to increase business from transient club members while failing to take steps to ensure that the bicycles were safe for use, thus violating Connecticut public policy by placing profits ahead of safety and causing substantial injury to consumers and/or providing the defendant with an unfair advantage over competing marinas. Counts five and ten allege spoliation of evidence on the ground that the defendants repaired the bicycle in question while aware of the impending action.
1 Although Richard Herbst is a plaintiff in this action, the claims central to this motion solely involve Sharon Herbst and therefore the court will refer to her as “the plaintiff” for purposes of this decision.
2 Although the plaintiff fails to allege the violation of a particular statute in her complaint, both parties make arguments referring to the Connecticut Unfair Trade Practices Act, General Statutes §42-110a et seq., therefore the court will address their arguments under that statute.
On November 28, 2008, the defendants filed a motion to strike (# 117) paragraphs 12(e) and 12(f) of counts one and six, and counts three, four, eight and nine entirely. [*3] The defendants filed a memorandum of law in support (# 118). The plaintiff filed an objection to the motion to strike (# 120) and corresponding memorandum of law in opposition (# 121) on December 11, 2008. The parties presented oral arguments to the court on January 12, 2009.
DISCUSSION
[HN1] “The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted.” (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). “A motion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factual findings by the trial court.” (Internal quotation marks omitted.) Bernhard-Thomas Building Systems, LLC v. Dunican, 286 Conn. 548, 552, 944 A.2d 329 (2008). “[I]n determining the sufficiency of a complaint challenged by a defendant’s motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted.” Violano v. Fernandez, 280 Conn. 310, 318, 907 A.2d 1188 (2006).
Counts One and Six
The defendants move to strike paragraphs 12(e) and (f) of counts one and six. These [*4] two paragraphs allege that the defendants negligently caused the plaintiff’s injuries “in that the defendant did not provide the plaintiff with a bicycle helmet when they could and should have done so” and “in that the defendant failed to make bike helmets visible and/or readily assessable [sic] to business invitees.” The defendants argue that “there exists no legal duty on the part of the defendants to provide and/or make available a bicycle helmet to an adult.” (Motion to Strike, p. 5.) The plaintiff responds that the defendant cannot move to strike only certain portions of a count, but rather only a count as a whole, and that, even if the court were to examine the merits of the defendants’ arguments, the plaintiff sufficiently pleaded a claim for common-law negligence on the ground that the defendants failed to maintain safe premises for business invitees by offering bicycles to visiting boaters without providing helmets. (Memorandum in Opposition, pp. 4-5.)
[HN2] “‘Although there is a split of [opinion], most trial courts follow the rule that a single paragraph of a pleading is subject to a motion to strike only when it attempts to set forth all of the essential allegations of a cause [*5] of action or defense . . . [O]nly an entire count of a counterclaim or an entire special defense can be subject to a motion to strike, unless the individual paragraph embodies an entire cause of action or defense . . . Prior to the 1978 Practice Book revision, a motion to strike . . . individual portions or paragraphs of a count did not lie if the count as a whole stated a cause of action . . . Arguably under the present rules, a motion to strike may properly lie with respect to an individual paragraph in a count . . . However, the weight of [opinion] in the Superior Court is that the motion does not lie, except possibly where the subject paragraph attempts to state a cause of action.’ (Citations omitted; internal quotation marks omitted.) Trimachi v. Workers’ Compensation Commission, Superior Court, judicial district of New Haven, Docket No. CV 97 0403037 (June 14, 2000, Devlin, J.) (27 Conn. L. Rptr. 681, 2000 Conn. Super. LEXIS 1548).” Wright v. 860 Main, LLC, Superior Court, judicial district of Hartford, Docket No. CV 06 5007079, (May 21, 2007, Tanzer, J.) (43 Conn. L. Rptr. 458).
The plaintiff alleges the breach of a variety of duties under its general claim of negligence in counts one and six. The plaintiff’s [*6] claims relating to the defendants’ alleged failure to provide bicycle helmets identifies a purported duty that may be properly recognized as a claim entirely distinct from the alleged duties pertaining to the maintenance of the bicycle. As such, this is an instance where it is appropriate to review the legal sufficiency of the identified individual paragraphs via a motion to strike.
The claims in paragraphs 12(e) and (f) of counts one and six are not legally sufficient to state a claim upon which relief can be granted, and therefore the court grants the defendant’s motion to strike those paragraphs. The plaintiffs claim that the defendants had a common-law duty to provide bicycle helmets to adults finds no support in Connecticut law. The only bicycle helmet statute in Connecticut, General Statutes §14-286d, requires protective headgear solely for children under the age of sixteen. 3 The plaintiff is older than sixteen and therefore the requirements of §14-286d are inapplicable.
3 The relevant portions of §14-286d state: [HN3] “(b) No child fifteen years of age or under shall operate a bicycle on the traveled portion of any highway unless such child is wearing protective headgear which conforms [*7] to the minimum specifications established by the American National Standards Institute or the Snell Memorial Foundation’s Standard for Protective Headgear for Use in Bicycling. Failure to comply with this section shall not be a violation or an offense. Failure to wear protective headgear as required by this subsection shall not be considered to be contributory negligence on the part of the parent or the child nor shall such failure be admissible in any civil action . . . (d) A person, firm or corporation engaged in the business of renting bicycles shall provide a bicycle helmet conforming to the minimum specifications established by the American National Standards Institute or the Snell Memorial Foundation’s Standard for Protective Headgear for Use in Bicycling to any person under sixteen years of age who will operate the bicycle if such person does not have a helmet in his possession. A fee may be charged for the helmet rental. Violation of any of the provisions of this subsection shall be an infraction.”
[HN4] “The existence of a duty is a question of law and only if such a duty is found to exist does the trier of fact then determine whether the defendant violated that duty in the particular [*8] situation at hand . . . [T]he test for the existence of a legal duty of care entails (1) a determination of whether an ordinary person in the defendant’s position, knowing what the defendant knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result, and (2) a determination, on the basis of a public policy analysis, of whether the defendant’s responsibility for its negligent conduct should extend to the particular consequences or particular plaintiff in the case . . . The first part of the test invokes the question of foreseeability, and the second part invokes the question of policy . . . [W]e are not required to address the first prong as to foreseeability if we determine, based on the public policy prong, that no duty of care existed.” (Citation omitted; internal quotation marks omitted.) Neuhaus v. Decholnoky, 280 Conn. 190, 217-18, 905 A.2d 1135 (2006).
The plaintiff has not identified any prior Connecticut court that recognizes the duty of a bicycle purveyor to provide a helmet to a would-be cyclist over the age of sixteen. Several superior court decisions have addressed the related question of whether there exists a duty [*9] to wear a bicycle helmet in the context of a special defense of contributory negligence. The court in Dubicki v. Auster, Superior Court, judicial district of New London at Norwich, Docket No. 107712 (March 8, 1996, Hendel, J.) (16 Conn. L. Rptr. 301, 1996 Conn. Super. LEXIS 671), considered the question of “whether an adult bicycle rider can be considered contributorily negligent for his or her failure to wear a bicycle helmet while riding his or her bicycle.” The court noted that the language of §14-286d, “as well as a review of the legislative history . . . reveals that the statute was primarily designed to encourage the use of headgear by children” and that “[t]here is no similar statute for adults.” Id., 302, 1996 Conn. Super. LEXIS 671. The court concluded that “[t]here being no statutory duty imposed on an adult rider to wear [a helmet], there can be no contributory negligence for an adult rider’s failure to do so.” Id.
In an analogous case, the court in Ruth v. Poggie, Superior Court, judicial district of Tolland at Rockville, Docket No. CV 93 52750 (November 22, 1993, Klaczak, J.) [10 Conn. L. Rptr. 412, 1993 Conn. Super. LEXIS 3090], concluded that an injured motorcyclist could not be found contributorily negligent for failing to wear a helmet because “there is [*10] no duty, statutory or otherwise, for motorcycle operators in Connecticut to take the safety precaution to wear a protective helmet. Thus . . . it cannot be said that the failure to wear a motorcycle helmet amounts to negligence on the party of the rider.”
As this court agrees with those decisions holding that an adult cyclist does not have a duty to wear a helmet, and further observes that the legislature clearly decided to limit any such duty to children under the age of sixteen, this court now holds that a bicycle purveyor is under no duty to provide an adult bicyclist with a helmet. The practical reason for drawing this line is self-evident: an adult is fully capable of rationalizing the risks of riding a bicycle with or without a helmet, and may choose to act accordingly. The legislature’s policy of allowing each individual adult to choose whether to use a helmet is exemplified by the age cap on the protective headgear requirement for bicyclists in §14-286d as well as the legislature’s repeal of the so-called “motorcycle helmet law” in 1976. See General Statutes (Rev. to 1975) §14-289e; Ruth v. Poggie, supra, Superior Court, Docket No. CV 93 52750. As illustrated in this case, if [*11] the plaintiff was concerned about her lack of a helmet, she could have chosen not to ride the bicycle. The defendants did not owe the plaintiff a duty to provide a bicycle helmet and the court therefore grants the defendants’ motion to strike paragraphs 12(e) and (f) of counts one and six.
Counts Three and Eight
The defendants move to strike counts three and eight on the ground that the plaintiff has “failed to plead facts alleging malicious, wanton and/or reckless conduct on the part of the defendants” and “merely reiterate the claims made in the negligence counts.” (Motion to Strike, p. 9.) The plaintiff responds that “the specific facts alleged in the case at bar are sufficient to satisfy the elements necessary to support a claim for reckless conduct so as to survive a motion to strike.” (Memorandum in Opposition, p. 6.) The court agrees with the plaintiff and denies the defendants’ motion to strike counts three and eight.
[HN5] “Recklessness is a state of consciousness with reference to the consequences of one’s acts . . . It is more than negligence, more than gross negligence . . . The state of mind amounting to recklessness may be inferred from conduct. But, in order to infer it, there [*12] must be something more than a failure to exercise a reasonable degree of watchfulness to avoid danger to others or to take reasonable precautions to avoid injury to them . . . [S]uch aggravated negligence must be more than any mere mistake resulting from inexperience, excitement, or confusion, and more than mere thoughtlessness or inadvertence, or simply inattention . . . Although there is a difference between negligence and a reckless disregard of the rights or safety of others, a complaint is not deficient so long as it utilizes language explicit enough to inform the court and opposing counsel that both negligence and reckless misconduct are being asserted.” (Citations omitted; internal quotation marks omitted.) Craig v. Driscoll, 262 Conn. 312, 342-43, 813 A.2d 1003 (2003).
The plaintiff utilizes language explicit enough to inform the court and the defendants that both negligence and reckless misconduct are being asserted. Furthermore, the plaintiff has alleged facts that, viewed in the light most favorable to sustaining the claim and treated as admitted for purposes of deciding this motion, support a claim for recklessness. The plaintiff’s detailed allegations regarding the purchase, [*13] maintenance and inspection of the bicycle are sufficient to sustain a claim of recklessness. The defendants’ motion to strike counts three and eight is therefore denied.
Counts Four and Nine
The defendants move to strike comas four and nine on the ground that the plaintiff’s CUTPA claims are legally insufficient because “(1) the alleged wrongful act was not conducted in the course of the defendant’s primary line of business; and (2) the plaintiffs cannot establish that Sharon Herbst suffered an ‘ascertainable loss’ as required by General Statutes §42-110g(a).” (Motion to Strike, pp. 14-15.) The plaintiff argues that she has established a prima facie CUTPA claim because she alleges in the complaint that the defendants operate a full service recreational facility that includes the advertising and provision of bicycles to increase business at the expense of competitors and that the solicitation of cycling business while providing unsafe bicycles offends public policy. (Memorandum in Opposition, pp. 10-11.) The plaintiff also argues that her personal injuries are an ascertainable loss recoverable in a claim for a CUTPA violation. Id. The defendants’ arguments rely on questions of fact not [*14] properly addressed at this juncture and therefore the court denies the motion to strike counts four and nine.
[HN6] “It is well settled that whether a defendant’s acts constitute . . . deceptive or unfair trade practices under CUTPA, is a question of fact for the trier . . . To establish a CUTPA violation, a claimant’s evidence must establish that the conduct at issue falls within one of three criteria. A court must decide whether the conduct (1) offends public policy, (2) is immoral, unethical, oppressive or unscrupulous or (3) causes substantial injury to consumers, competitors or other businessmen . . . Whether the defendant is subject to CUTPA is a question of law, not fact.” McCann Real Equities Series XXII, LLC v. David McDermott Chevrolet, Inc., 93 Conn.App. 486, 520-21, 890 A.2d 140 (2006). “[A] CUTPA violation may not be alleged for activities that are incidental to an entity’s primary trade or commerce.” Id., 523. “[T]he touchstone for a legally sufficient CUTPA claim is the implication that the acts complained of have ‘an entrepreneurial or business aspect.'” Simms v. Candela, 45 Conn. Supp. 267, 273, 711 A.2d 778 (1998) [21 Conn. L. Rptr. 479], quoting Haynes v. Yale-New Haven Hospital, 243 Conn. 17, 38, 699 A.2d 964 (1997).
Without [*15] evidence from either party, and accepting the facts as alleged in the complaint as true for purposes of resolving this motion, the court cannot say definitively that cycling is not a component of the defendants’ primary line of business. The plaintiff alleges that the defendant operated and managed a commercial boating marina but also repeatedly alleges that bicycling was a component of that operation. The court is unwilling to draw adverse factual inferences that the bicycling business was merely incidental to the marina business without additional facts not properly presented in a motion to strike. As such, the court cannot strike counts four and nine on this ground.
Similarly, the plaintiff alleges a variety of losses including those for physical injuries, medical care, lost wages, and the loss of enjoyment of life, and alleges that her damages resulted in part because of the defendants’ alleged CUTPA violations. Both parties acknowledge that there is a split of opinion in the superior court regarding whether damages for personal injuries may be recoverable under CUTPA. See, e.g., Rodriguez v. Westland Properties, Inc., Superior Court, judicial district of Ansonia-Milford at Milford, [*16] Docket No. CV 02 077228 (March 17, 2004, Upson, J.) (36 Conn. L. Rptr. 702, 2004 Conn. Super. LEXIS 615) (“[d]espite CUTPA’s broad language and remedial purpose, the plaintiff’s alleged [slip and fall] injuries do not satisfy the distinction alluded to in Haynes because they are personal, rather than economic”); Simms v. Candela, supra, 45 Conn.Sup. 274 (“[the plaintiff], like most personal injury plaintiffs, alleges that he has suffered economic losses, including medical expenses and lost wages, as a result of his fall. Assuming this allegation to be true, he is a ‘person who suffers [an] ascertainable loss of money’ “). Although the plaintiff’s claims may appear to be only tenuously derived from the defendants’ “entrepreneurial or business aspect”; see Haynes v. Yale-New Haven Hospital, supra, 243 Conn. 32-35; the plaintiff has adequately pleaded conduct and damages that could potentially be construed as ascertainable losses derived from a violation of CUTPA. The “issue as to whether this loss resulted from the CUTPA violation complained of . . . is a factual issue appropriately left to the judge or jury hearing the case.” Simms v. Candela, supra, 45 Conn.Sup. 274. The court therefore denies the defendants’ [*17] motion to strike counts four and nine.
CONCLUSION
For the foregoing reasons, the court grants the defendants’ motion to strike paragraphs 12(e) and 12(f) of counts one and six, and denies the motion to strike counts three, four, eight and nine.
The Court
Cronan, J.