The Ferae Naturae doctrine prevents a landowner from being liable for injuries to guests from wildlife.

In Texas, the landowner was not liable for the damages caused by a bite from a Brown Recluse Spider when it bit a tenant on the property.

Hillis v. McCall, 2020 Tex. LEXIS 187, 63 Tex. Sup. J. 577

State: Texas, Supreme Court of Texas

Plaintiff: Henry McCall

Defendant: Homer Hillis

Plaintiff Claims: premises liability

Defendant Defenses: ferae naturae

Holding: for the Defendant

Year: 2020

Summary

Ferae Naturae means naturally wild. Since the guest knew Brown Recluse Spiders were around and had seen them, he could not hold the landowner liable for the damages suffered when he was bitten by one. The Texas Supreme Court held that since the plaintiff knew spiders were around, and they were wild animals; the landowner/defendant was not liable.

Facts

Homer Hillis owns a bed and breakfast (the B&B) and a neighboring cabin in Fredericksburg, Texas. He used the B&B as a second home until 2012, when he began renting it out, mainly on weekends. Hillis hired a housekeeper to prepare and clean the B&B before guests arrived. That process included utilizing “bug bombs” in the event the housekeeper noticed any pest problems. Thus, as Hillis described it, pest control at the B&B was conducted on an “[a]s needed” basis.

In early 2014, Hillis leased the neighboring cabin on the property to Henry McCall. The cabin had no washer or dryer and had only a small refrigerator, so Hillis permitted McCall to use the laundry facilities and larger refrigerator in the B&B. McCall also offered to “open up” the B&B for guests and others needing access, such as electricians and other maintenance workers. According to McCall, Hillis typically called him several days before guests arrived and asked him to perform various tasks.

On December 12, 2014, McCall accessed the B&B at Hillis’s request to check the dishwasher and investigate whether the sink was leaking. While checking under the sink for a leak, McCall was bitten by a brown recluse spider, which is a venomous spider found in several states, including Texas.

Before he was bitten, McCall had observed spiders in both the cabin and the B&B on several occasions and had notified Hillis about the general presence of spiders in the B&B. According to Hillis, when McCall reported issues with insects or spiders, Hillis would pass along the information to the housekeeper who prepared the B&B for guests. Hillis also averred that customer reviews of the B&B had never complained of insects. Neither Hillis nor McCall had any personal knowledge about the presence of brown recluse spiders on Hillis’s property specifically or in the surrounding area. However, Hillis explained that he had read reports on the internet that brown recluse spiders “are habitats [sic] of Texas for a long time, and I assumed they were around my property.” Hillis had heard of people being bitten by brown recluses “elsewhere,” but not on his property.

McCall sued Hillis for negligence under a premises-liability theory, alleging that the presence of brown recluse spiders on Hillis’s property constituted an unreasonably dangerous condition, that Hillis knew or should have known of the condition, that Hillis owed McCall a duty to adequately warn him of the condition or make the property safe, that Hillis breached that duty, and that McCall suffered damages as a result. Hillis filed a motion for summary judgment, arguing that, under the longstanding doctrine of ferae naturae, he owed no duty to McCall with respect to indigenous wild animals that Hillis had neither introduced to nor harbored on the property. The trial court granted the motion, and McCall appealed.

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

Premise’s liability is based on the theory that a landowner owes a duty to someone coming upon their land. The duty owed is dependent on the status of the person coming on the land. That status is usually based on the relationship between the landowner and the guest.

A landowner owes the most duty to an invitee.

When the injured person qualifies as an invitee, as McCall did, then as a general rule the landowner owes a “duty to make safe or warn against any concealed, unreasonably dangerous conditions of which the landowner is, or reasonably should be, aware but the invitee is not.”[A] (landowner’s duty to an invitee is to “use ordinary care to reduce or eliminate an unreasonable risk of harm created by a premises condition which the owner . . . knows about or in the exercise of ordinary care should know about” (citation omitted)). In line with that rule, the duty does not extend to warning the invitee of hazards that are open and obvious.

There are exceptions to this rule. One is the open and obvious rule. A landowner does not owe the invitee a duty to warn or protect an invitee from an open and obvious danger on the land. If the risk is concealed, then the landowner must warn the invitee or protect the invitee from the risk.

The doctrine of ferae naturae is another duty that the landowner need not warn about. The doctrine of ferae naturae applies to wild animals and in a broader definition in some states to wind or water.

The reasoning underlying the doctrine is that wild animals “exist throughout nature” and are “generally not predictable or controllable.” In turn, the mere fact that an indigenous wild animal has crossed a landowner’s property line does not make the landowner better able to protect an invitee than the invitee is to protect himself. (“Under ordinary circumstances, Texas landowners do not have a duty to warn their guests about the presence and behavior patterns of every species of indigenous wild animals and plants which pose a potential threat to a person’s safety . . . .”).

There is an exception to the ferae naturae rule, if the wild animals are found in artificial structures or places where they are not normally found, then the landowner does have a duty to warn. The ferae naturae does not apply to zoos or to a keeper of wild animals.

Thus, when a wild animal enters such a structure, and the owner knows or has reason to know about the animal’s presence and the unreasonable risk of harm presented thereby but the invitee does not, it is reasonable to expect the owner to take steps to alleviate the danger or at least warn the invitee of it. (holding that a grocery store owner was not liable to a patron who was bitten by a rattlesnake inside the store where nothing in the record suggested that the owner “knew, or had reason to know from past experience, that there was a likelihood that snakes presented a danger to patrons”).

Because the landowner did not know the Brown Recluse Spiders were inside the building, he did not owe a duty to the plaintiff to warn him of the spiders. Further because the plaintiff did have actual knowledge that spiders were on the property he knew of the possible risks. The court stated there was no duty to warn a guest about something they already know.

The court held the landowner was not liable for the acts of the wild animal.

So Now What?

Since in most states, wild animals are owned by the state and since no one, contrary to whatever you see on TV or believed from Disney in the past, can control a wild animal, landowners are not liable for their actions. Consequently, holding a landowner liable for something he or she does not own and cannot control is difficult and does not create a legal duty.

The facts in this case are convoluted, but what allowed the landowner to succeed was the fact the plaintiff, who was living on the property for free, knew that dangerous spiders were around on the property. Since the landowner did not know there were Brown Recluse Spiders on the property the landowner could not be liable.

What do you think? Leave a comment.

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Hillis v. McCall, 2020 Tex. LEXIS 187, 63 Tex. Sup. J. 577

Hillis v. McCall, 2020 Tex. LEXIS 187, 63 Tex. Sup. J. 577

Homer Hillis, Petitioner,

v.

Henry McCall, Respondent

No. 18-1065

Supreme Court of Texas

March 13, 2020

On Petition for Review from the Court of Appeals for the Fourth District of Texas

OPINION

Debra H. Lehrmann Justice

The ferae naturae doctrine limits a landowner’s liability for harm caused by indigenous wild animals on his property. In this premises-liability case arising out of a brown-recluse spider bite, we are asked how the doctrine affects the scope of the landowner’s duty to his bitten invitee. The landowner argues that he owed no duty to the invitee because he was unaware of the presence of brown recluse spiders on his property and he neither attracted the offending spider to his property nor reduced it to his possession. Further, the invitee had actual knowledge of the presence of spiders on the property. The court of appeals held that the property owner failed to conclusively establish the absence of a duty and thus reversed the trial court’s summary judgment in his favor. We agree with the landowner and reverse the court of appeals’ judgment.

I. Background

Homer Hillis owns a bed and breakfast (the B&B) and a neighboring cabin in Fredericksburg, Texas. He used the B&B as a second home until 2012, when he began renting it out, mainly on weekends. Hillis hired a housekeeper to prepare and clean the B&B before guests arrived. That process included utilizing “bug bombs” in the event the housekeeper noticed any pest problems. Thus, as Hillis described it, pest control at the B&B was conducted on an “[a]s needed” basis.

In early 2014, Hillis leased the neighboring cabin on the property to Henry McCall.[ 1] The cabin had no washer or dryer and had only a small refrigerator, so Hillis permitted McCall to use the laundry facilities and larger refrigerator in the B&B. McCall also offered to “open up” the B&B for guests and others needing access, such as electricians and other maintenance workers. According to McCall, Hillis typically called him several days before guests arrived and asked him to perform various tasks.[ 2]

On December 12, 2014, McCall accessed the B&B at Hillis’s request to check the dishwasher and investigate whether the sink was leaking. While checking under the sink for a leak, McCall was bitten by a brown recluse spider, which is a venomous spider found in several states, including Texas.

Before he was bitten, McCall had observed spiders in both the cabin and the B&B on several occasions and had notified Hillis about the general presence of spiders in the B&B.[ 3]According to Hillis, when McCall reported issues with insects or spiders, Hillis would pass along the information to the housekeeper who prepared the B&B for guests. Hillis also averred that customer reviews of the B&B had never complained of insects. Neither Hillis nor McCall had any personal knowledge about the presence of brown recluse spiders on Hillis’s property specifically or in the surrounding area.[ 4] However, Hillis explained that he had read reports on the internet that brown recluse spiders “are habitats [sic] of Texas for a long time, and I assumed they were around my property.” Hillis had heard of people being bitten by brown recluses “elsewhere,” but not on his property.

McCall sued Hillis for negligence under a premises-liability theory, alleging that the presence of brown recluse spiders on Hillis’s property constituted an unreasonably dangerous condition, that Hillis knew or should have known of the condition, that Hillis owed McCall a duty to adequately warn him of the condition or make the property safe, that Hillis breached that duty, and that McCall suffered damages as a result. Hillis filed a motion for summary judgment, arguing that, under the longstanding doctrine of ferae naturae, he owed no duty to McCall with respect to indigenous wild animals that Hillis had neither introduced to nor harbored on the property. The trial court granted the motion, and McCall appealed.

The court of appeals reversed. 562 S.W.3d 98, 106 (Tex. App.-San Antonio 2018). Viewing the evidence in the light most favorable to McCall, the court concluded that “McCall was bitten by a spider in an artificial structure and Hillis knew or should have known of an unreasonable risk of harm posed by the spiders inside the B&B.” Id. Accordingly, the court held that Hillis had failed to establish as a matter of law the absence of a duty to warn or make safe under the doctrine of ferae naturae. Id.

II. Discussion

A. Standard of Review

A trial court’s order granting summary judgment is reviewed de novo. Tarr v. Timberwood Park Owners Ass’n, 556 S.W.3d 274, 278 (Tex. 2018). A party moving for traditional summary judgment has the burden to prove that no genuine issue of material fact exists and that he is entitled to judgment as a matter of law. ConocoPhillips Co. v. Koopmann, 547 S.W.3d 858, 865 (Tex. 2018); see also Tex. R. Civ. P. 166a(c). “When reviewing a summary judgment, we take as true all evidence favorable to the nonmovant, and we indulge every reasonable inference and resolve any doubts in the nonmovant’s favor.” Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005) (citations omitted).

B. Premises Liability and Ferae Naturae

“A claim against a property owner for injury caused by a condition of real property generally sounds in premises liability.” Occidental Chem. Corp. v. Jenkins, 478 S.W.3d 640, 642 (Tex. 2016). When the claim is based on the property owner’s negligence, the threshold question is whether the owner owed a duty to the injured person. See Brookshire Grocery Co. v. Goss, 262 S.W.3d 793, 794 (Tex. 2008). “The existence of a duty is a question of law for the court to decide from the facts surrounding the occurrence” at issue. Walker v. Harris, 924 S.W.2d 375, 377 (Tex. 1996).[ 5] Further, the duties owed by a landowner in a premises-liability case “depend upon the role of the person injured on his premises.” Rosas v. Buddies Food Store, 518 S.W.2d 534, 535 (Tex. 1975). When the injured person qualifies as an invitee, [ 6] as McCall did, [ 7] then as a general rule the landowner owes a “duty to make safe or warn against any concealed, unreasonably dangerous conditions of which the landowner is, or reasonably should be, aware but the invitee is not.” Austin v. Kroger Tex., L.P., 465 S.W.3d 193, 203 (Tex. 2015); see also United Scaffolding, Inc. v. Levine, 537 S.W.3d 463, 471 (Tex. 2017) (landowner’s duty to an invitee is to “use ordinary care to reduce or eliminate an unreasonable risk of harm created by a premises condition which the owner . . . knows about or in the exercise of ordinary care should know about” (citation omitted)). In line with that rule, the duty does not extend to warning the invitee of hazards that are open and obvious. Austin, 465 S.W.3d at 204.

Notwithstanding the general rule regarding the duty a premises owner owes to invitees, we have approached the scope of the duty differently in some circumstances. For example, we have held that a premises owner generally has no duty to protect invitees from the criminal acts of third parties on the owner’s property, but we recognize an exception “when the owner knows or has reason to know of a risk of harm to invitees that is unreasonable and foreseeable.” Del LagoPartners, Inc. v. Smith, 307 S.W.3d 762, 767 (Tex. 2010); see also Austin, 465 S.W.3d at 206 (characterizing the duty recognized in Del Lago as an exception to the general rule that a landowner owes no duty to warn an invitee with respect to unreasonably dangerous conditions that are obvious or known to the invitee). Pertinent to this case, we have also recognized that, with certain exceptions, a premises owner generally owes no duty to protect invitees from wild animals on the owner’s property. Union Pac. R.R. Co. v. Nami, 498 S.W.3d 890, 896-97 (Tex. 2016). Under this longstanding doctrine of ferae naturae, such a duty does not exist “unless the landowner actually reduced indigenous wild animals to [his] possession or control,” “introduced nonindigenous animals into the area,” or affirmatively “attract[ed] the animals to the property.” Id. at 897 (citations omitted); see also Nicholson v. Smith, 986 S.W.2d 54, 63 (Tex. App.-San Antonio 1999, no pet.).

The reasoning underlying the doctrine is that wild animals “exist throughout nature” and are “generally not predictable or controllable.” Nami, 498 S.W.3d at 897 (quoting 4 Am Jur. 2d, Animals § 62 (2007)).[ 8] In turn, the mere fact that an indigenous wild animal has crossed a landowner’s property line does not make the landowner better able to protect an invitee than the invitee is to protect himself. Id.; see also Nicholson, 986 S.W.2d at 63 (“Under ordinary circumstances, Texas landowners do not have a duty to warn their guests about the presence and behavior patterns of every species of indigenous wild animals and plants which pose a potential threat to a person’s safety . . . .”). The risk and foreseeability of injury do not outweigh the severe burden and potential consequences of imposing a general duty on a landowner with respect to “indigenous wild animals in their natural habitat, in the normal course of their existence.” Nicholson, 986 S.W.2d at 62; see also Brantley v. Oak Grove Power Co., No. 10-12-00135-CV, 2012 WL 5974032, at *3 (Tex. App.-Waco Nov. 29, 2012, no pet.) (mem. op.) (holding that a landowner owed no duty to a construction worker who was bitten by a spider at a construction site, in part because the spider was “in its natural habitat in the normal course of its existence” and the employer had engaged in no affirmative or negligent acts to draw spiders to the area).

However, courts applying the ferae naturae doctrine have long recognized an additional exception to the general no-duty rule, holding that a landowner: could be negligent with regard to wild animals found in artificial structures or places where they are not normally found; that is, stores, hotels, apartment houses, or billboards, if the landowner knows or should know of the unreasonable risk of harm posed by an animal on its premises, and cannot expect patrons to realize the danger or guard against it.

Nami, 498 S.W.3d at 897 (citing various treatises); see also Overstreet v. Gibson Prod. Co., 558 S.W.2d 58, 61 (Tex. App.-San Antonio 1977, writ ref’d n.r.e.) (noting that a landowner owes no duty to exercise reasonable care to protect invitees from the acts of wild animals on the property “until he knows or has reason to know that the dangerous acts by wild animals are occurring or about to occur”). Under that exception, a duty akin to the general duty owed to invitees under Texas law-that is, a duty to warn of or make safe from an unreasonably dangerous condition about which the owner knows or reasonably should know but the invitee does not-arises with respect to “wild animals found in artificial structures or places where they are not normally found.” Nami, 498 S.W.3d at 897.

We generally agree with the policies underlying imposing such a duty on landowners with respect to wild animals that pose an unreasonable risk of harm inside artificial structures like homes, stores, hotels, and offices. While landowners cannot be held to account for every animal that finds its way inside, particularly small animals like insects and spiders that may easily enter and escape detection, we also do not expect invitees as a general matter to exercise any particular vigilance with respect to wild animals when inside.[ 9] Thus, when a wild animal enters such a structure, and the owner knows or has reason to know about the animal’s presence and the unreasonable risk of harm presented thereby but the invitee does not, it is reasonable to expect the owner to take steps to alleviate the danger or at least warn the invitee of it. See Overstreet, 558 S.W.2d at 61, 63 (holding that a grocery store owner was not liable to a patron who was bitten by a rattlesnake inside the store where nothing in the record suggested that the owner “knew, or had reason to know from past experience, that there was a likelihood that snakes presented a danger to patrons”).[ 10]

Hillis argues that this exception amounts to a “new duty” that places an untenable burden on landowners. We disagree. First, it comports with the general premises-liability duty imposed on landowners with respect to invitees as well as the consistently recognized caveat to the ferae naturae doctrine. Nami, 498 S.W.3d at 897; see also Nicholson, 986 S.W.2d at 62; Overstreet, 558 S.W.2d at 61. Second, the fact that the duty hinges on the owner’s knowledge or reason to know of an unreasonable risk of harm is significant. Unfortunately, many insects and spiders are commonly found indoors. The ever-present possibility that an insect or spider bite may occur indoors does not amount to an unreasonable risk of harm imposing a duty on property owners to guard against or warn of this fact of life. To that end, knowledge of the presence of a harmless indigenous insect or spider does not in and of itself amount to a reason to know of the presence of the kinds of insects or spiders that present a danger to invitees. On the other hand, a property owner who knows or should know of an unreasonable risk that dangerous indoor pests will bite invitees in his particular building has a duty to alleviate the danger or warn of it if the invitees neither know nor should know of the heightened risk. This strikes an appropriate balance between protecting invitees and ensuring that the burden placed on landowners is not unduly onerous.

Having outlined the parameters of the pertinent duty, we turn to its application to the facts of this case.

C. Analysis Viewing the evidence in the light most favorable to McCall, the pertinent facts are as follows: • Hillis’s property is in Fredericksburg, in the Texas Hill Country. • Hillis rented a cabin on the property to McCall and used a residence on the property as a B&B, mainly for weekend rentals. • Hillis conducted pest control in the B&B on an as-needed basis by instructing the housekeeper to set off bug bombs if she saw pests while preparing the B&B for guests. • McCall, an invitee, was bitten by a brown recluse spider inside the B&B while checking under the kitchen sink for a leak. • Brown recluse spiders are indigenous to Texas. • Hillis had read about brown recluse spiders on the internet and knew that they were indigenous to Texas and thus that they could be on his property. • McCall did not know brown recluse spiders were indigenous to Texas. • McCall had seen spiders on several occasions in both the cabin and the B&B. When he saw spiders in the B&B, he would notify Hillis, who passed along the information to the housekeeper who prepared the B&B for guests. • Customer reviews of the B&B had never mentioned insects. • Hillis had no actual knowledge of the presence of brown recluse spiders on his property before McCall was bitten. • McCall had no actual knowledge of the presence of brown recluse spiders on Hillis’s property before McCall was bitten.

On these facts, we hold that Hillis owed McCall no duty as a matter of law, notwithstanding the fact that the injury occurred inside the B&B. McCall’s position is essentially that because Hillis knew spiders had been seen in the B&B, and because he knew brown recluses are found in Texas, he knew or should have known that a dangerous brown recluse spider was in the B&B and thus had a duty to warn McCall.[ 11] We disagree.

First, as noted, knowledge of the general intermittent presence of spiders does not necessarily amount to knowledge of an unreasonable risk of harm, and Hillis had no particular reason to know that brown recluses, or other venomous spiders, were inside the B&B. Although Hillis knew that brown recluses are indigenous to Texas, the record does not show that he had identified or should have identified that the spiders McCall previously reported seeing inside the house presented a danger. Indeed, McCall testified in his deposition that the spiders he had seen in the B&B and reported to Hillis before McCall was bitten were the “[s]ame type of spiders” he had seen in his previous home in Fredericksburg, and nothing in the record indicates that he was referring to brown recluses or to any other type of venomous spider. The record thus conclusively negates a determination that Hillis knew or had reason to know of an unreasonable risk of harm presented by brown recluse spiders inside the B&B.

Further, McCall and Hillis had identical actual knowledge of the presence of spiders on the property: both knew that they had been seen in the B&B periodically, and neither knew of the presence of brown recluses or of other types of venomous spiders.[ 12] According to McCall, Hillis should have warned him that the spiders McCall himself had seen could have been venomous. But it is simply common knowledge that some spiders are venomous and others harmless. We will not impose a duty on a landowner to warn an invitee about something he already knows. See Nami, 498 S.W.3d at 897 (recognizing that imposition of a duty with respect to wild animals inside an artificial structure depends in part on a determination that the invitee cannot reasonably be expected “to realize the danger or guard against it”).

As noted, the existence of a duty is a question of law that depends on the underlying facts. Walker, 924 S.W.2d at 377. Even with respect to wild animals found inside, an owner’s duty to invitees does not extend beyond warning about or making safe from unreasonably dangerous conditions about which the owner knows or has reason to know but the invitee does not. On the record before us, we hold that Hillis negated a duty to McCall as a matter of law.

III. Conclusion

The trial court correctly granted summary judgment for Hillis on McCall’s premises-liability claim. Accordingly, we reverse the court of appeals’ judgment and render judgment that McCall take nothing.

———

Notes:

[ 1] Karen Oringderff, McCall’s common-law wife, was also a tenant. She is not a party to this lawsuit.

[ 2] Hillis disputed this characterization, stating that he typically did not affirmatively request McCall’s assistance with respect to preparing the B&B for guests. Rather, Hillis merely accepted McCall’s offer to help, was “happy that he was willing to do it, and . . . appreciated it.” For summary judgment purposes, we will accept McCall’s version of events.

[ 3] McCall was responsible for pest control in the cabin while Hillis remained responsible for pest control in the B&B.

[ 4] According to the court of appeals, “Hillis admitted in his deposition that he knew there was a population of brown recluse spiders on the property.” 562 S.W.2d 98, 106 (Tex. App.-San Antonio 2018). Neither party references deposition testimony to that effect, and our review of the record revealed no such testimony.

[ 5] We balance several factors in determining whether a duty exists, including the risk, foreseeability, and likelihood of injury weighed against the social utility of the landowner’s conduct, the burden of preventing the injury, and the consequences of placing that burden on the landowner. Greater Hous. Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990).

[ 6] An invitee is “one who enters on another’s land with the owner’s knowledge and for the mutual benefit of both.” Rosas, 518 S.W.2d at 536.

[ 7] McCall alleged in his petition that he qualified as an invitee when he was bitten, and Hillis conceded as much for purposes of his summary judgment motion. We therefore assume without deciding that McCall was an invitee.

[ 8] We recognized in Nami that insects are treated as wild animals. 498 S.W.3d at 896 (citing Restatement (Second) of Torts § 506 cmt. a (Am. Law Inst. 1977)). We see no reason to treat arachnids differently.

[ 9] In light of these considerations, the fact that the injury occurs in or near any type of artificial structure does not necessarily give rise to the exception. For example, in Brantley, the plaintiff was bitten by a spider while “standing on a concrete slab [at a construction site] with a partial structure and no roof.” 2012 WL 5974032, at *3. The court of appeals, noting testimony that “there were spiders everywhere in the field” at the site, held that the spider that bit the plaintiff was in its natural habitat and no duty was owed. Id. While we cannot anticipate how the doctrine would apply with respect to every type of artificial structure imaginable, we can say that we do not view barns and billboards in the same way as structures like houses, hotels, offices, and retail stores in evaluating the duty owed with respect to wild animals.

[ 10] We need not address whether an additional exception exists when a landowner has actual knowledge of an unreasonable risk of harm presented by a wild animal on his property (even while outside) and the patron neither knows nor reasonably should know of the risk.

[ 11] McCall does not contend that Hillis engaged in any affirmative or negligent acts to draw venomous spiders to the property.

[ 12] The court of appeals did not consider the effect of McCall’s awareness of the presence of spiders inside the B&B on whether Hillis owed him a duty, holding that “Hillis did not assert McCall’s knowledge as a basis for summary judgment [and instead] relied exclusively on the doctrine of ferae naturae to negate the element of duty.” 562 S.W.3d at 100 n.1. We disagree with that narrow characterization of Hillis’s summary judgment motion. In challenging the existence of a duty in that motion, Hillis focused principally on the absence of evidence that he had attracted brown recluses to the property; however, he explicitly referenced McCall’s knowledge as supporting a finding that no duty was owed. Hillis then elaborated on the significance of that knowledge in his reply in support of the motion. We will not ignore the relevant evidence of McCall’s knowledge that Hillis expressly brought to the trial court’s attention in his summary judgment motion and reply.

———


Backing of a lift ticket peeled off by Plaintiff to attach lift ticket to his jacket held by Federal District court to be a release and prevents plaintiffs’ claims for skiing into hidden snow making equipment.

Five Federal District Courts have ruled that the information on the back of a lift ticket is a release. No state Courts have ruled this way.

Miller v. Sunapee Difference, LLC, 308 F. Supp. 3d 581; 2018 U.S. Dist. LEXIS 55536; 2018 DNH 072

State: New Hampshire, United States District Court for the District of New Hampshire

Plaintiff: Thomas Jackson Miller

Defendant: The Sunapee Difference, LLC d/b/a Mount Sunapee Resort

Plaintiff Claims: Negligence

Defendant Defenses: Release

Holding: For the Defendant

Year: 2018

Summary

The plaintiff in this case, a skier at New Hampshire’s Mount Sunapee resort, was injured when he struck a support post for snow making equipment. At issue in this case is whether a release attached to his lift ticket excuses the ski area for liability in connection with its alleged negligence in failing to mark the post, warn skiers about it, or otherwise make it visible.

Facts

Following a large 2015 snowfall, Miller visited Mount Sunapee with his brother and father for a day of skiing. Miller was skiing ahead of his companions through fresh powder on the left side of the Beck Brook trail4 when he struck an unmarked “snow gun holder” that was concealed by snow. The “holder” — essentially a steel pipe protruding from the ground — is a mounting post for snow-making guns. The post remains embedded in the ground after the guns are removed. There was no snow-making gun in the holder at the time of this accident. Miller suffered serious leg injuries in the collision.

The major difference in this case was the lift ticket identified itself as a release. The back of the lift ticket, on the part that peeled away to reveal the sticky section where the lift ticket attached to itself to create a two-sided lift ticket stated:

In order to ski at Mount Sunapee, Miller first purchased a lift ticket. The ticket has a self-adhesive backing, which the skier affixes to his zipper tab or similar visible location. In order to attach it, the skier must first remove it from a peel-off backing. Printed on the back of the peel-off backing of the Mount Sunapee lift ticket was the following:

STOP

YOU ARE RELEASING THIS SKI AREA FROM LIABILITY

By removing this peel-off backing and using this ticket, you agree to be legally bound by the LIABILITY RELEASE printed on the other side of this ticket. If you are not willing to be bound by this LIABILITY RELEASE, please return this ticket with the peel-off backing intact to the ticket counter for a full refund.

The Lift Ticket itself stated:

LIABILITY RELEASE

Skiing, snowboarding, and other winter sports are inherently dangerous and risky with many hazards that can cause injury or death. As purchaser or user of this ticket, I agree, as a condition of being allowed to use the facilities of the Mount Sunapee resort, to freely accept and voluntarily assume all risks of property damage, personal injury, or death resulting from their inherent or any other risks or dangers. I RELEASE MOUNT SUNAPEE RESORT, its parent companies, subsidiaries, affiliates, officers, directors, employees and agents FROM ANY AND ALL LIABILITY OF ANY KIND INCLUDING NEGLIGENCE which may result from conditions on or about the premises, operation of the ski area or its afacilities [sic] or from my participation in skiing or other winter sports, accepting for myself the full and absolute responsibility for all damages or injury of any kind which may result from any cause. Further I agree that any claim which I bring against Mount Sunapee Resort, its officers, directors, employees or agents shall be brought only in Federal or State courts in the State of New Hampshire. I agree my likeness may be used for promotional purposes.

MOUNT SUNAPEE CARES, SKI RESPONSIBLY AND ALWAYS IN CONTROL.

RECKLESS SKIING WILL RESULT IN LOSS OF TICKET

NON-TRANSFERABLE: Use by a non-purchaser constitutes theft of services.

NON-REFUNDABLE. LOST TICKETS WILL NOT BE REPLACED Mount Sunapee Resort, P.O. Box 2021, Newbury, NH 03255

The language on this lift ticket specifically stated that it was a release, not just a lift ticket and not just a warning.

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

The court first looked at New Hampshire law on releases.

Such an exculpatory contract is enforceable if: 1) it does not violate public policy; 2) the plaintiff understood the import of the agreement or a reasonable person in [plaintiff’s] position would have understood the import of the agreement; and 3) the plaintiff’s claims fall within the contemplation of the parties when they executed the contract.

The plaintiff argued that the release was void because it violated public policy, and a reasonable person would only understand that the release applied to the inherent risks of skiing.

New Hampshire public policy requires a showing that no special relationship exists between the parties to the agreement and there is no disparity in the bargaining power between the parties. The New Hampshire Supreme Court found that an agreement would violate public policy if “it is injurious to the interests of the public, violates some public statute, or tends to interfere with the public welfare or safety.”

The plaintiff admitted that there was no special relationship between the parties nor was there a disparity of bargaining power. He centered his public policy argument on the theory that the release violated New Hampshire statutory law and that the release was injurious so the public interest. The statutory law argument was based on the New Hampshire Ski Area Act. The Act requires ski area operators to mark visible man-made objects. This object was not visible so therefor the plaintiff argued it should be marked and therefore, was negligence not to pad or mark it. However, the court would not buy into adding language to the statute where none existed. On top of that another section of the statute specially stated a ski assumes the risks of hitting snow making equipment.

The next argument advanced to argue the release violated public policy was based on several prior court decisions that held there was a duty on the state to do things. However, here again, the court found the was no duty in the New Hampshire Ski Area Act other than found in the plain language of the act. The duty the plaintiff was attempting to create was based on tying different sections of the act together that were not related.

The final public policy argument was because the ski area, Mount Sunapee was located on state-owned land and developed with federal funding, that created a greater duty to the public. However, the plaintiff could not provide any support for this theory, other than arguing sections of the lease between the ski area, and the state required it. The court found there was no language in the lease that created supported a public policy argument.

In most states, to create a contract, there are several requirements. One of those is there must be a meeting of the minds. A meeting of the minds requires the parties to know they are entering into a contract and the general terms of the agreement. This was clearly not the case in this situation (and in most lift ticket cases); however, New Hampshire does not require a meeting of the minds to enforce a contract.

The plaintiff then argued that without a signature, there could be a release. However, New Hampshire had a lot of case law where unsigned contracts were enforced.

The plaintiff argued he did not have an opportunity to read the release. However, that does not matter in New Hampshire and in most states when you sign it. However, here there was no signature.

A plaintiff’s failure to read a release “does not preclude enforcement of the release.” As long as the plaintiff had an opportunity to read the release, even if he chooses not to take it, a release can be enforced.

Here the court sort of worked its way around that issue because it found the plaintiff was a personal injury attorney. The plaintiff had submitted affidavits on the issue, which the court found lacking in the information needed to support the plaintiff’s arguments. The court did hammer plaintiff’s counsel at oral argument until plaintiff’s counsel admitted he had the opportunity to read it if he wanted.

Another issue is what the parties were contemplating when they made the agreement. A requirement for a contract under New Hampshire law. The court found the language of the release, which it had earlier found valid, contained the necessary information to define what the intention of the release was.

If “the release clearly and specifically indicates the intent to release the defendant from liability for personal injury caused by the defendant’s negligence, the agreement will be upheld.” Id. The court gives the language of the release “its common meaning and give[s] the contract itself the meaning that would be attached to it by a reasonable person.” Id. “All that is required” is for the language to “clearly and specifically indicate[] the intent to release the defendants from liability for personal injury caused by the defendants’ negligence . . . .”

The court then went into the Reckless, Wanton or positive misconduct claims of the plaintiff. New Hampshire has adopted the Restatement of Torts definition of Reckless.

Under the Restatement [(Second) of Torts], § 500, at 587 (1965), conduct is “reckless” if it “would lead a reasonable man to realize, not only that his conduct creates an unreasonable risk of physical harm to another, but also that such a risk is substantially greater than that which is necessary to make his conduct negligent.” Id. The conduct “must involve an easily perceptible danger of death or substantial physical harm, and the probability that it will so result must be substantially greater than is required for ordinary negligence.”

The court further defined reckless under New Hampshire law as:

…at a minimum, is conduct “where the known danger ceases to be only a foreseeable risk which a reasonable person would avoid, and becomes in the mind of the actor a substantial certainty.

However, the court found that the pleadings of the plaintiff pled no more than simple negligence. Meaning the facts argued by the plaintiff did not rise to the level needed to create a recklessness claim.

The court summed up its analogy as:

The undisputed factual record shows that plaintiff purchased and affixed to his clothing a lift ticket at Mount Sunapee that unambiguously released the ski area from liability from its own negligence, that such a release does not violate public policy, and that plaintiff’s signature was not required to effectuate its terms. Furthermore, there is no material factual dispute that plaintiff had the opportunity to read both the cautionary language on the ticket’s peel-off backing and the release language itself, that he would have understood that language to constitute a release and that a reasonable person in his position would have understood that the release exculpated Mount Sunapee from its own negligence.

So Now What?

It seemed obvious that this court was going to hold for the ski area. The decision explored all the arguments and possible arguments the plaintiff’s made and then ruled for the defendants.

The back of the pass had more than normal warning language as required by most statutes. This peel away release stated it was a release. There is also an issue that the purchaser of the lift ticket had already paid for the ticket before they found out there was a release giving rise to misrepresentation and fraud claim may be.

What is interesting is the change in the past five year, only in Federal District Courts holding that a lift ticket is a valid release at least mentioning the lift ticket as more than a receipt or a pass to access the lifts.

For more articles about Lift Tickets being used to stop lawsuits at ski areas see:

Lift tickets are not contracts and rarely work as a release in most states    http://rec-law.us/1bO85eU

Colorado Federal District Court judge references a ski area lift ticket in support of decision granting the ski area’s motion for summary judgment and dismissing the lawsuit.    http://rec-law.us/2vHUXf1

#BoycottNH New Hampshire charges for Search & Rescue. Do not recreate in New Hampshire

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Miller v. Sunapee Difference, LLC, 308 F. Supp. 3d 581; 2018 U.S. Dist. LEXIS 55536; 2018 DNH 072

Miller v. Sunapee Difference, LLC, 308 F. Supp. 3d 581; 2018 U.S. Dist. LEXIS 55536; 2018 DNH 072

United States District Court for the District of New Hampshire

March 31, 2018, Decided; March 31, 2018, Filed

Civil No. 16-cv-143-JL

Counsel:  [**1] For Thomas Jackson Miller, Plaintiff: Arend R. Tensen, Cullenberg & Tensen, Lebanon, NH.

For The Sunapee Difference, LLC, doing business as Mount Sunapee Resort, other Mount Sunapee Resort, Defendant: Thomas B.S. Quarles, Jr., LEAD ATTORNEY, Brendan P Mitchell, Devine Millimet & Branch PA, Manchester, NH.

Judges: Joseph N. Laplante, United States District Judge.

Opinion by: Joseph N. Laplante

Opinion

[*584]  MEMORANDUM ORDER

The plaintiff in this case, a skier at New Hampshire’s Mount Sunapee resort, was injured when he struck a support post for snow making equipment. At issue in this case is whether a release attached to his lift ticket excuses the ski area for liability in connection with its alleged negligence in failing to mark the post, warn skiers about it, or otherwise make it visible.

Invoking the court’s diversity jurisdiction, 28 U.S.C. § 1332(a), plaintiff Thomas Jackson Miller, a New York resident, sued The Sunapee Difference, LLC, operator of the Mount Sunapee Resort (“Mount Sunapee”), a New Hampshire ski area, for injuries he sustained when he struck the unmarked and unpadded post that was concealed by fresh snow. Pursuant to Fed. R. Civ. P. 12(c), Mount Sunapee moved for judgment on the pleadings, arguing that the liability release printed on Miller’s [**2]  lift ticket bars his claim. Miller argues that the release is unenforceable under New Hampshire law and inapplicable on its face. As both sides submitted  [*585]  documents outside the pleadings in litigating this motion, the court has, with the parties’ consent,1 converted the motion into one for summary judgment under Fed. R. Civ. P. 12(d).2 Having considered the parties’ filings and hearing oral argument, the court finds that the release is both applicable and enforceable, and therefore grants summary judgment in favor of Mount Sunapee.3

I. Applicable legal standard

Summary judgment is appropriate when the record reveals “no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). When ruling on a motion for summary judgment, the court “constru[es] the record in the light most favorable to the nonmoving party and resolv[es] all reasonable inferences in that party’s favor.” Pierce v. Cotuit Fire Dist., 741 F.3d 295, 301 (1st Cir. 2014). In the summary judgment analysis, “a fact is ‘material’ if it has the potential of determining the outcome of the litigation.” Maymi v. P.R. Ports. Auth., 515 F.3d 20, 25 (1st Cir. 2008). A factual dispute is genuine “if the evidence about the fact is such that a reasonable jury could resolve the point in the favor of the non-moving party.” Sanchez v. Alvarado, 101 F.3d 223, 227 (1st Cir.1996) (citation and [**3]  internal quotation marks omitted). Nevertheless, if the nonmoving party’s “evidence is merely colorable, or is not significantly probative,” no genuine dispute as to a material fact has been proved, and “summary judgment may be granted.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986) (citations omitted).

II. Background

Following a large 2015 snowfall, Miller visited Mount Sunapee with his brother and father for a day of skiing. Miller was skiing ahead of his companions through fresh powder on the left side of the Beck Brook trail4 when he struck an unmarked “snow gun holder” that was concealed by snow. The “holder” — essentially a steel pipe protruding from the ground — is a mounting post for snow-making guns. The post remains embedded in the ground after the guns are removed. There was no snow-making gun in the holder at the time of this accident. Miller suffered serious leg injuries in the collision.

In order to ski at Mount Sunapee, Miller first purchased a lift ticket. The ticket has a self-adhesive backing, which the skier affixes to his zipper tab or similar visible location. In order to attach it, the skier must first remove it from a peel-off backing. Printed on the back of the peel-off backing of the Mount Sunapee lift ticket [**4]  was the following:

 [*586]  STOP

[a red octagon image similar to a traffic-control “stop sign”]

YOU ARE RELEASING THIS SKI AREA FROM LIABILITY

By removing this peel-off backing and using this ticket, you agree to be legally bound by the LIABILITY RELEASE printed on the other side of this ticket. If you are not willing to be bound by this LIABILITY RELEASE, please return this ticket with the peel-off backing intact to the ticket counter for a full refund.

The lift ticket itself displayed the following language:

LIABILITY RELEASE

Skiing, snowboarding, and other winter sports are inherently dangerous and risky with many hazards that can cause injury or death. As purchaser or user of this ticket, I agree, as a condition of being allowed to use the facilities of the Mount Sunapee resort, to freely accept and voluntarily assume all risks of property damage, personal injury, or death resulting from their inherent or any other risks or dangers. I RELEASE MOUNT SUNAPEE RESORT, its parent companies, subsidiaries, affiliates, officers, directors, employees and agents FROM ANY AND ALL LIABILITY OF ANY KIND INCLUDING NEGLIGENCE which may result from conditions on or about the premises, operation of the ski area [**5]  or its afacilities [sic] or from my participation in skiing or other winter sports, accepting for myself the full and absolute responsibility for all damages or injury of any kind which may result from any cause. Further I agree that any claim which I bring against Mount Sunapee Resort, its officers, directors, employees or agents shall be brought only in Federal or State courts in the State of New Hampshire. I agree my likeness may be used for promotional purposes.

MOUNT SUNAPEE CARES, SKI RESPONSIBLY AND ALWAYS IN CONTROL.

RECKLESS SKIING WILL RESULT IN LOSS OF TICKET

NON-TRANSFERABLE: Use by a non-purchaser constitutes theft of services.

NON-REFUNDABLE. LOST TICKETS WILL NOT BE REPLACED Mount Sunapee Resort, P.O. Box 2021, Newbury, NH 03255

(Emphasis in original).

After timely filing this lawsuit,5 Miller filed an Amended Complaint6 asserting a single count of negligence. He alleges that Mount Sunapee failed to mark or warn skiers of the pipe, or otherwise mitigate its danger to skiers, by, for example, padding it or making it visible to skiers. In addition, Miller alleges that Mount Sunapee breached its duties to create a safe environment for guests, and to perform in-season trail maintenance [**6]  work. Finally, Miller claims that Mount Sunapee is liable because it failed to comply with N.H. Rev. Stat. Ann. § 225-A:23 (II)(b), which provides, in relevant part, that “[t]he ski area operator shall warn skiers and passengers by use of the trail board, if applicable, that snow grooming or snow making operations are routinely in progress on the slopes and trails serviced by each tramway.”7

 [*587]  III. Analysis

As noted at the outset, Sunapee argues that the release printed on Miller’s lift ticket — in combination with the acceptance of its terms on the backing sheet — bars his claim. “Although New Hampshire law generally prohibits a plaintiff from releasing a defendant from liability for negligent conduct, in limited circumstances a plaintiff can expressly consent by contract to assume the risk of injury caused by a defendant’s negligence.” Allen v. Dover Co-Recreational Softball League, 148 N.H. 407, 413, 807 A.2d 1274 (2002). Such an exculpatory contract is enforceable if: 1) it does not violate public policy; 2) the plaintiff understood the import of the agreement or a reasonable person in [plaintiff’s] position would have understood the import of the agreement; and 3) the plaintiff’s claims fall within the contemplation of the parties when they executed the contract. McGrath v. SNH Dev., Inc., 158 N.H. 540, 542, 969 A.2d 392 (2009) (citing Dean v. MacDonald, 147 N.H. 263, 266-67, 786 A.2d 834 (2008)); Lizzol v. Brothers Prop. Mgmt. Corp., 2016 DNH 199, *7.

Plaintiff argues that the [**7]  release satisfies none of these criteria, because: 1) it violates public policy; 2) a reasonable person would have understood the release to exclude only “inherent risks of skiing,” as enumerated in New Hampshire’s “ski statute,” N.H. Rev. Stat. Ann. § 225-A:24; 3) the release does not encompass reckless, wanton, or willful conduct; and 4) the release is unsigned.

A. Public policy

“A defendant seeking to avoid liability must show that an exculpatory agreement does not contravene public policy; i.e., that no special relationship existed between the parties and that there was no other disparity in bargaining power.” McGrath, 158 N.H. at 543 (quoting Barnes v. N.H. Karting Assoc., 128 N.H. 102, 106, 509 A.2d 151 (1986)). The New Hampshire Supreme Court has also found an agreement to be against public policy “if, among other things, it is injurious to the interests of the public, violates some public statute, or tends to interfere with the public welfare or safety.” Id. (citing Harper v. Healthsource New Hampshire, 140 N.H. 770, 775, 674 A.2d 962 (1996)). Miller does not argue that he had a special relationship with Mount Sunapee or that there was a disparity in bargaining power between the two.8 Instead, he confines his public policy argument to two points: 1) that the release violates New Hampshire statutory law; and 2) that it is injurious to the interest of the public. Neither argument [**8]  withstands scrutiny.

1. New Hampshire statutory law

Miller argues that the combination of N.H. Rev. Stat. Ann. §§ 225-A:23, II, and 225-A:24 requires ski area operators to plainly mark or make visible snow-making equipment. Therefore, he concludes, applying the release to the allegedly hidden snow gun holder would allow Mount Sunapee to impermissibly evade this statutory responsibility. As a general proposition, Miller is correct that a release can not excuse a ski area‘s statutory violation. Harper, 140 N.H. at 775; cf. Nutbrown v. Mount Cranmore, 140 N.H. 675, 683, 671 A.2d 548 (1996) (noting, in ski accident case, that ski areas’ immunity does not apply to claim based on statutory violation). However, Miller’s argument here is built on a faulty premise — that  [*588]  § 225-A:24, denoted “Responsibilities of Skiers and Passengers” — imposes an affirmative duty on ski areas to mark or make visible snow-making equipment. The court rejects this argument for several reasons.

First, Miller attempts, without legal support, to create an affirmative duty out of the text of § 225-A:24 where none exists. Section 225-A:24 “is an immunity provision for ski area operators.” Cecere v. Loon Mountain Recreation Corp., 155 N.H. 289, 291, 923 A.2d 198 (2007). It has been “interpreted to mean that ski area operators owe no duty to skiers to protect them from the inherent risks of skiing.” Rayeski v. Gunstock Area/Gunstock Area Comm’n, 146 N.H. 495, 497, 776 A.2d 1265 (2001). One of the inherent “risks, hazards, or dangers which [**9]  the skier . . . assumes as a matter of law” is “plainly marked or visible snow making equipment.” N.H. Rev. Stat. Ann. § 225-A:24, I. Miller argues that because unmarked or not visible snow-making equipment is not “an inherent risk” enumerated by the statute, ski areas therefore have a statutory duty to mark them or make them visible.

This argument is both contrary to the language of the statute and unsupported by any legal authority. While the language of the statutory immunity provision — enumerating a “Skier’s Responsibilities” — arguably does not bar Miller’s claim9 that he struck an unmarked and not visible piece of equipment, it likewise creates no affirmative duties for ski areas. Stated differently, while New Hampshire law may allow
ski area liability for injuries resulting from collisions with unmarked equipment, it does not logically follow that New Hampshire law requires the marking of such equipment. The statute sets forth no such obligation or legal duty.

To avoid the plain language of §225-A:24, Miller argues that Rayeski, supra, imposes an affirmative duty on Mount Sunapee when read in conjunction with § 225-A:23. In that case, the New Hampshire Supreme Court, invoking §225-A:24, upheld the dismissal of a skier’s claim for injuries sustained [**10]  in a collision with an unmarked light pole. 146 N.H. at 500. The plaintiff in Rayeski argued that the light pole collision was similar to a collision with unmarked snow-making equipment, which the statute “implies . . . is not an inherent risk of skiing” by not barring such a claim. Id. at 498. In the course of finding that the pole collision was an inherent risk of skiing (despite not being specifically enumerated as such in the statute), the Court distinguished between poles and snow making equipment:

We conclude that the legislature’s explicit reference to “plainly marked or visible snow making equipment” was intended to balance the immunity granted to ski area operators under RSA 225-A:24 with their duty under RSA 225-A:23, II(b) (2000) to warn skiers of snow making or grooming activities by denying immunity to ski area operators who breach a statutorily imposed safety responsibility.

Id. (emphasis added).

Based on the emphasized language, Miller argues that § 225-A:23 required Mount Sunapee to mark or make visible the snow gun holder he struck. This argument ignores the plain language both of Rayeski and the statute. The Rayeski
opinion referred only to “snow making or grooming activities,” and made no reference to marking equipment. And [**11]  the statute, captioned “Base Area; Information to Skiers and  [*589]  Passengers,” requires that a ski area operator “warn skiers and passengers by use of the trail board, if applicable, that snow grooming or snow making operations are routinely in progress on the slopes and trails serviced by each tramway.” (Emphasis added). Thus, contrary to Miller’s argument, this section imposes no requirement to “mark or make visible” the snow gun holder at issue in this case. Instead, the statute requires the ski area to post “at the base area” a warning concerning grooming and snowmaking operations, if applicable.
10See Nardone v. Mt. Cranmore, Civ. No. 91-114-SD, slip op. at 6-7 (holding that § 225-A:23, II(b)‘s warning requirement does not apply where snowmaking was not in progress and where plaintiff collided with fixed, unmarked piece of snowmaking equipment) (emphasis added).11 Miller does not dispute Mount Sunapee’s contention that there was no grooming or snow making “in progress” at the time of or in the vicinity of Miller’s accident.12 An inoperative snow gun holder is neither an “activity” nor an “operation.”

Further undermining Miller’s argument that § 225-A:24 creates obligations for ski area
operators is the fact that [**12]  its five sub-sections are explicitly and unambiguously addressed to skiers and passengers (as opposed to ski area
operators), as follows: I) “Each person who participates in the sport of skiing . . . accepts . . . the dangers inherent in the sport . . . .”; II) “Each skier and passenger shall have the sole responsibility . . . “; III) “Each skier or passenger shall conduct himself or herself . . .”; IV) “Each passenger shall be the sole judge of his ability . . .”; V) “No skier or passenger or other person shall . . .” N.H. Rev. Stat. Ann. § 225-A:24, I-V (emphasis added).

In addition, under New Hampshire statutory construction law, “[t]he title of a statute is ‘significant when considered in connection with . . . ambiguities inherent in its language.'” Appeal of Weaver, 150 N.H. 254, 256, 837 A.2d 294 (2003) (quoting State v. Rosario, 148 N.H. 488, 491, 809 A.2d 1283 (2002); see also, Berniger v. Meadow Green-Wildcat Corp., 945 F.2d 4, 9 (1st Cir. 1991) (interpreting N.H. Rev. Stat. Ann. § 225-A:24 and observing that “[i]t is well established that a statute’s title may aid in construing any ambiguities in a statute.”). As noted, the title of § 225-A:24 is explicitly directed at “skiers and passengers,” not ski area operators. While this court discerns no such ambiguity that would justify a foray into ascertaining “legislative intent,” our Court of Appeals has stated that “the title indicates the legislative intent to limit the application [**13]  of [§ 225-A:24] to skiers and passengers and similar classes of individuals, which does not include a ski operator or its employees.” Berniger, 945 F.2d at 9 (1st Cir. 1991). This conclusion is buttressed by the fact that the preceding provision, § 225-A:23, is captioned “Responsibilities of Ski Area Operators,” further  [*590]  suggesting § 225-A:24‘s inapplicability here. This statutory structure — clearly distinguishing ski area operator responsibilities from visitor responsibilities — is especially important in light of the New Hampshire Supreme Court’s requirement that statutes be construed “as a whole.” Petition of Carrier, 165 N.H. 719, 721, 82 A.3d 917 (2013); see also, Univ. of Texas Sw. Med. Ctr v. Nassar, 570 U.S. 338, 133 S. Ct. 2517, 2529, 186 L. Ed. 2d 503 (2013) (“Just as Congress’ choice of words is presumed to be deliberate, so too are its structural choices.”); DeVere v. Attorney General, 146 N.H. 762, 766, 781 A.2d 24 (2001) (noting that structure of a statute can be an interpretive tool). Accordingly, the court finds that the Mount Sunapee release does not impermissibly seek to avoid statutory liability.13

In addition to his misplaced reliance on Rayeski, Miller also argues that the McGrath Court’s allowance of liability releases is “limited to situations where the public statute at issue contains a statutorily imposed enforcement mechanism,” which allows state officials to protect the public interest by imposing [**14]  penalties on violators.14

The holding in McGrath, which involved a snowmobiling accident, is not as broad as plaintiff posits. It is true that the Court in McGrath, in rejecting a claim that a liability waiver violated public policy because it allowed defendants to avoid certain snowmobile safety statutes, noted that the waiver did not affect the State’s ability to enforce snowmobiling rules and penalize infractions, and thus did not entirely relieve the defendant property owners of any statutory responsibility. 158 N.H. at 543 (citing N.H. Rev. Stat. Ann. §§ 215-C:32 and 34). But several factors undercut Miller’s reliance on McGrath. First, plaintiff’s argument is premised on his assertion that Mount Sunapee is trying to avoid liability for a statutory violation. The court has already rejected plaintiff’s premise as an untenable reading of §§ 225-A:23 and 24. Next, the State enforcement criterion was not dispositive in McGrath, as the Court found that the liability waiver did not contravene public policy because, “[i]rrespective of the statute, the plaintiff has voluntarily agreed not to hold the ski area, or its employees, liable for injuries resulting from negligence so that she may obtain a season ski pass.” Id. at 543 (emphasis added). In addition, even [**15]  if the court read McGrath to require a state law enforcement vehicle to protect the public interest, the New Hampshire ski statutes do in fact provide one. Under N.H. Rev. Stat. Ann. § 225-A:26, “any person . . . violating this chapter . . . shall be guilty of a violation if a natural person, or guilty of a misdemeanor if any other person.”

Plaintiff argues that this statutory enforcement provision is limited to tramway operations, and thus does not satisfy McGrath. He supports this argument with a letter from a supervisor at the New Hampshire Division of Fire Safety,15 which  [*591]  correctly observes, pursuant to N.H. Rev. Stat. Ann. § 225-A:3-a, that the authority of the Passenger Tramway Safety Board is limited to ski lift operations and “shall not extend to any other matters relative to the operation of a ski area.”16 The letter also states that the penalty provision of § 225-A:26 “specifically relates to operating a tramway without it first being registered.”17 The letter also specifically mentions §§ 225-A:23 and 24, as being outside the tramway board’s authority.18

There are several reasons why the letter does not advance plaintiff’s statutory argument. First, the letter is not properly part of the summary judgment record. According to its terms, it was sent in response [**16]  to plaintiff’s counsel’s request for documents concerning the enforcement of § 225-A:26. However, “[i]n opposing a motion for summary judgment, a plaintiff must proffer admissible evidence that could be accepted by a rational trier of fact as sufficient to establish the necessary proposition.” Gomez-Gonzalez v. Rural Opportunities, Inc., 626 F.3d 654, 662 n.3 (1st Cir. 2010) (emphasis added). The letter itself is inadmissible hearsay, as it is being offered to prove the truth of the matters asserted with respect to enforcement of § 225-A:23 and 24. See
Fed. R. Evid. 801(c)(2); see also Hannon v. Beard, 645 F.3d 45, 49 (1st Cir. 2011) (“It is black-letter law that hearsay evidence cannot be considered on summary judgment for the truth of the matter asserted.”). Moreover, although apparently issued by a government office (the plaintiff made no effort to lay such a foundation), the letter is not admissible under the Public Records hearsay exception. See
Fed. R. Evid. 803(8) (requiring, for admissibility, the evidence in question to, inter alia, set out the public office’s activities and involve a matter observed while under a legal duty to report). It is true that some forms of evidence, such as affidavits and declarations, may be considered on summary judgment, even if they would not be admissible at trial, so long as they “set out facts that would be admissible in evidence” [**17]  if the affiant or declarant testified to them at trial. Fed. R. Civ. P. 56(c)(4). The letter in question, however, is neither an affidavit nor a declaration. In addition to being an unsworn letter, it fails to show how the letter writer is expressing “personal knowledge,” and fails to show that she is “competent to testify on the matters stated,” as required by Fed. R. Civ. P. 56(c)(4); see also
Fed. R. Evid. 602 (personal knowledge requirement).

Next, even if the letter was properly before the court, it lacks any legal force, either as a pronouncement of New Hampshire law, or an interpretation thereof. N.H. Rev. Stat. Ann. § 225-A:8 empowers the Tramway Safety Board to make rules regarding tramways. “Rules and Regulations promulgated by administrative agencies, pursuant to a valid delegation of authority, have the full force and effect of laws.” State v. Elementis Chem., 152 N.H. 794, 803, 887 A.2d 1133 (2005). Under New Hampshire administrative law, however, as set forth under its Administrative Procedure Act, the letter in question is not a rule, and thus lacks such force. It is simply a letter answering a question posed by the plaintiff’s lawyer. See
N.H. Rev. Stat. Ann. § 541-A:1, XV (explicitly excluding, under definition of “Rule,” “informational pamphlets, letters or other explanatory materials which refer to a statute or rule without affecting its substance or [**18]  interpretation”). Notably, the plaintiff cites no provision of New Hampshire’s administrative  [*592]  law involving the Passenger Tramway Safety Board or Rules which support his theory. See N.H. Code. Admin. R. Ann. (PAS 301.01 et. seq. (2016)).

Finally, even if the letter was a properly admissible part of the summary judgment record in support of the proposition that the enforcement of § 225-A:26 is limited to tramway operations, and even if it were a duly-promulgated article of New Hampshire administrative law, it still fails to advance the plaintiff’s argument (to the extent it even addresses the issue before the court), because it incorrectly contradicts the governing statute, § 225-A:26.

As noted, the letter states that the authority of the Tramway Safety Board is limited to ski lift operations and “shall not extend to any other matters relative to the operation of a ski area.”19 This is undoubtedly true as far as it goes, as it tracks the language of § 225-A:3-a. That observation misses the point, however, as § 225-A:26 does not limit enforcement of § 225-A to the Tramway Board. To the contrary, the statute holds “any person” “guilty” of a violation or misdemeanor for violations of “this chapter,” i.e., the entirety of N.H. Rev. Stat. Ann. § 225-A, a chapter which [**19]  addresses a wider variety of ski-related activities than ski lifts and tramways. Thus, the letter contradicts the plain language of the statute by inaccurately portraying the applicability of § 225-A:26 as limited to “operating a tramway without it first being registered.”20 Under New Hampshire law, “[r]ules adopted by administrative agencies may not add to, detract from, or in any way modify statutory law,” Elementis Chem., 152 N.H. at 803, and the letter’s pronouncement, even it were a duly adopted Rule, would be invalid. See Appeal of Gallant, 125 N.H. 832, 834, 485 A.2d 1034 (1984) (noting that agency regulations that contradict the terms of a governing statute exceed the agency’s authority and are void). The statute penalizes not only failing to register, but also “violating this chapter or rules of the [Tramway Safety] board.” (emphasis added). In effect, the plaintiff is asking the court to ignore the plain language of the statute in favor of a letter which is neither properly before the court nor is a valid administrative rule and which fails to address the issue before the court — the scope of § 225-A:26. The court is not free to ignore the Federal Rules of Civil Procedure, New Hampshire’s Administrative Procedure Act,21 or the plain language of New Hampshire’s ski-related statutes.

Accordingly, the court finds that New Hampshire statutory law provides no support to plaintiff’s public policy argument.

2. Injurious to the public interest

Plaintiff next argues that the Mount Sunapee release violates public policy as injurious to the public interest because Mount Sunapee is located on state-owned land that was, at least in part, developed with federal funding. Plaintiff cites no authority for this argument, but instead relies on various provisions in the lease between Mount Sunapee and the State of New Hampshire. None of these provisions establish or support the proposition that public policy prohibits the enforcement of the release.

For example, the lease requires the property to be used for “public outdoor recreational uses,” “for the mutual benefit of the public and the Operator,” and “as a public ski area . . . for the general public.”22 In addition, the ski area operator is  [*593]  required to “allow public access,” “maintain the Leased Premises in first class condition,” and “undertake trail maintenance.”23 Even assuming, arguendo, that the lease theoretically establishes public policy, the plaintiff makes no coherent argument how the release in question runs afoul of any [**21]  of its provisions. Instead, plaintiff argues, strenuously but without authority, that condoning Mount Sunapee’s requirement that a skier agree to the release as a condition of skiing there “effectively sanctions the conversion of public land by Mount Sunapee.”24 He also argues, again without authority, that:

“[p]rivate operators of public lands, to which the public must be allowed access, cannot be allowed to limit access to such lands to those individuals who are willing to forego their statutory rights by exculpating the private operators from the consequences of their own negligence. To hold otherwise, would mark the first step toward eliminating public access to public lands at the expense of the general public.”

(Emphasis added). Initially, the court reiterates its finding, supra, Part III.A.1, that the language at issue in this case does not implicate plaintiff’s statutory rights. Moreover, whatever persuasive force his policy-based arguments hold, plaintiff cites no authority — in the form of cases, statutes or regulations — upon which the court can rely to accept them.25

As a final public-interest related matter, the parties dispute the import of liability releases used at Cannon [**22]  Mountain, a state-owned and operated ski area. In its motion, Mount Sunapee cited those releases to demonstrate that New Hampshire’s public policy does not generally disfavor liability releases.26 Plaintiff, however, points out that because the Cannon release does not use the word “negligence,” it may, in fact, not release Cannon from its own negligence. See Barnes, 128 N.H. at 107 (noting that “the [exculpatory] contract must clearly state that the defendant is not responsible for the consequences of his negligence.”). Therefore, plaintiff suggests, Sunapee’s release may have exceeded what public policy (as articulated in the Cannon release) permits. Regardless of the Cannon release’s enforceability — a matter on which the court offers no opinion — the court finds that Mount Sunapee has the better of this argument. New Hampshire’s public policy is likely best expressed by its legislative enactments, particularly N.H. Rev. Stat. Ann. § 225-A:24, I, under which “ski area operators owe no duty to protect patrons from the inherent risks of skiing and thus are immunized from liability for any negligence related to these risks.” Cecere v. Loon Mountain Recreation Corp., 155 N.H. 289, 295, 923 A.2d 198 (2007). Such legislatively-enacted immunity from negligence undercuts Miller’s argument that the Cannon release demarcates [**23]  the outer boundary of New Hampshire public policy. Ultimately, the court is skeptical that, as both parties implicitly argue, the state’s risk management decisions and devices, as embodied in certain ski area releases, constitute articulations of public policy.

Having failed to demonstrate any statutory transgressions or injury to the public interest, plaintiff has failed to establish a genuine issue of material fact as to whether the Mount Sunapee release violates public policy.

 [*594]  B. Import of the agreement

The next factor the court must consider in assessing the enforceability of the Mount Sunapee release is whether the plaintiff or a reasonable person in his position would have understood its import. Dean, 147 N.H. at 266-67. Miller argues that a factual dispute exists as to this criterion because there was no “meeting of the minds” sufficient to form an enforceable binding agreement.27 He bases this proposition, in turn, on two assertions: 1) that the release is unsigned; and 2) that he did not read it. The court finds that New Hampshire law does not require a signature to effectuate the terms of a release and that the plaintiff had — but chose not to take advantage of — an opportunity to read the release.

1. Signature

As an initial matter, the court notes that a “meeting of the minds” is not an explicit requirement of enforceability under New Hampshire law. The Court in Dean required only that “the plaintiff understood the import of the agreement or a reasonable person in his position would have understood the import of the agreement.” 147 N.H. at 266-67. While a signature might be evidence of such understanding, it has never been held to be a prerequisite. Indeed, in Gannett v. Merchants Mut. Ins. Co., 131 N.H. 266, 552 A.2d 99 (1988), the Court enforced an unsigned and unread release of an insurance claim.

Plaintiff asserts that the New Hampshire Supreme Court has never explicitly upheld the enforcement of an unsigned liability release. See, e.g., McGrath, 158 N.H. at 545 (“[t]he ski pass application signed by the plaintiff”); Dean, 147 N.H. at 266 (“Mr. Dean signed the Release before entering the infield pit area”); Audley, 138 N.H. at 417 (“two releases signed by the plaintiff”); Barnes, 128 N.H. at 106 (“release and waiver of liability and indemnity agreement he signed”). Even if one were to accept this proposition despite the holding in Gannett, which is arguably distinguishable from the line of New Hampshire cases just cited, it is not dispositive, because the Court has also never explicitly required a signature on a liability release as a condition [**25]  of enforceability.

In a diversity case such as this one, if the state’s highest court has not spoken directly on the question at issue, this court must try to predict “how that court likely would decide the issue,” looking to the relevant statutory language, analogous state Supreme Court and lower state court decisions, and other reliable sources of authority. Gonzalez Figueroa v. J.C. Penney P.R., Inc., 568 F.3d 313, 318-19 (1st Cir. 2009). A review of an analogous decision of the New Hampshire Supreme Court and several New Hampshire trial court decisions reviewing ski area liability releases leads the court to conclude that Miller’s unsigned release is enforceable.

The court finds some guidance in Gannett, supra, where the Court enforced a release of an insurance claim even though the releasing party neither read nor signed the release, but returned it before cashing the insurer’s check. 131 N.H. at 270. Especially salient here, the Court found it “irrelevant whether [plaintiff] actually read the release, when the release clearly and unambiguously stated the condition, and when she had the opportunity to read it.” Id. at 269-270 (emphasis added). The Gannett Court cited the passage in Barnes, 128 N.H. at 108, enforcing an un-read liability  [*595]  release where the defendant felt rushed through the admittance line. The Barnes court enforced [**26]  the release where “[t]here was no evidence . . . that [the plaintiff] was denied the opportunity to read the body of the release.” Id.

Two New Hampshire Superior Court cases involving ski lift ticket releases also inform this analysis. See Commissioner v. Estate of Bosch, 387 U.S. 456, 465, 87 S. Ct. 1776, 18 L. Ed. 2d 886 (1967) (noting that decrees of lower state courts should be “attributed some weight”, but are not controlling, where the highest State court has not spoken on an issue). In Camire v. Gunstock Area Comm’n, No. 11-C-337, 2013 N.H. Super. LEXIS 30 (N.H. Super. Ct., Mar. 22, 2013) (O’Neil, J.), the court granted the defendant ski area summary judgment based on an unsigned release. 2013 N.H. Super. LEXIS 30 at *8. (“[T]he fact that Ms. Camire did not sign the agreement does not render it unenforceable, as a participant’s signature is not required under the factors set forth in [Dean]“), aff’d on other grounds, 166 N.H. 374, 97 A.3d 250 (2014). While the trial judge also noted that the ski area had a large sign near the ticket kiosk calling attention to the existence of the lift ticket release, and that plaintiff testified in her deposition that she would have understood the ticket’s release language had she read it, 2013 N.H. Super. LEXIS 30 at *5, the trial court’s observation that the lack of a signature was not dispositive is entitled, as the United States Supreme Court has [**27]  noted, to “some weight.” Bosch’s Estate, 387 U.S. at 465.

The court also draws some guidance from a New Hampshire trial court that denied a ski area operator’s motion for summary judgment in another case involving a lift ticket release. In Reynolds v. Cranmore Mountain Resort, No. 00-C-0035, (N.H. Super. Ct., March 20, 2001) (O’Neil, J.), the plaintiff’s lift ticket contained a peel off backing similar to the one at issue here, including the red “STOP” sign symbol. Id. at 2. The plaintiff claimed that she did not sign the release and that the release language was not conspicuous enough to give notice to a reasonable person. Id. at 5. While the court did not rule on the signature issue, it ruled that a jury issue remained as to whether the “STOP” sign on the ticket was sufficiently conspicuous, because the peel-off backing contained an advertisement for a free workout, also written in red, in a larger font than much of the warning on the backing. Id. at 1-2, 7. In so ruling, the court relied on Passero v. Killington, Ltd., 1993 U.S. Dist. LEXIS 14049, 1993 WL 406726 (E.D. Pa. Oct. 4, 1993), a Pennsylvania case in which the lift ticket at issue contained an advertisement in a larger typeface than the release language. 1993 U.S. Dist. LEXIS 14049, [WL] at * 7 (“[Plaintiff] argues that the exculpatory clause’s minuscule size, its setting against a dark background, and the existence [**28]  of a much larger advertisement for a 15% discount on a “COMPLETE OVERNIGHT SKI TUNE-UP” on the lift ticket’s adhesive backing, all serve to distract the skier’s attention away from the substantive rights he or she is supposedly relinquishing by purchasing the lift ticket.”). The Superior Court found that it was “best left to the trier of fact to determine whether the language of the lift ticket reasonably communicated the existence of a contractual agreement to the purchaser . . . .” Id. Here, the Mount Sunapee lift ticket contains no such distracting advertisement or font sizes greater than that of the release language on the ticket. As the distracting features were the basis for the New Hampshire Superior Court’s denial of summary judgment in Reynolds, the lack of any such features here is significant. Accordingly, the court finds that the lack of a signature on the lift ticket release is not, under the circumstances of this case, a barrier to its enforceability where the plaintiff had an opportunity to read it and the terms were unambiguous and not contrary to public policy.

 [*596]  2. Opportunity to read the release

A plaintiff’s failure to read a release “does not preclude enforcement of [**29]  the release.” Barnes, 128 N.H. at 108. As long as the plaintiff had an opportunity to read the release, even if he chooses not to take it, a release can be enforced. Dean, 147 N.H. at 270; cf. Jenks v. N.H. Motor Speedway, Inc., 2010 DNH 38 (material factual dispute existed as to whether plaintiff had opportunity to read release where plaintiff put his name on a sign-up sheet and release may have been obscured).

Plaintiff, a personal injury attorney, originally submitted two sparse affidavits in opposition to Mount Sunapee’s dispositive motion.28 The affidavits’ only reference to the release is that he did not read the language on the lift ticket or the peel off backing, nor was he instructed to. He did not claim that he lacked the time or opportunity to read it, or was discouraged from doing so. Nor do the affidavits state that he did not peel off the lift ticket from the backing paper.

To be sure, the plaintiff carries no burden of proof at summary judgment, but the sparse and somewhat cryptic nature of the plaintiff’s affidavits — one of which conspicuously tracked the facts emphasized in the Reynolds Superior Court decision, supra, but added nothing more — led this court to ask several pointed questions at oral argument. When pressed by the court regarding the omitted, but [**30]  critical, subject matter, plaintiff’s counsel conceded that Miller purchased the ticket, affixed it to his own jacket, had the opportunity to read the backing and the release, and would have recognized it as a release (although not as interpreted by Mount Sunapee).29

In an abundance of caution, and reluctant to grant summary judgment terminating plaintiff’s claims without a more fully developed record, the court sua sponte ordered supplemental discovery concerning, inter alia, the issue of plaintiff’s purchase and use of the lift ticket on the day of his injury.30 Although the plaintiff resisted defense counsel’s attempts to elicit direct answers to straightforward questions about his handling and viewing of the lift ticket, plaintiff’s deposition confirmed certain relevant facts that his counsel conceded at oral argument. First, plaintiff testified that he was handed the lift ticket with the release language facing up, and did not see the language on the peel-off backing.31 Nevertheless, plaintiff confirmed that he had the opportunity to read the release language on the lift ticket and the peel off backing before he removed the ticket from the backing and affixed it to his clothing.32 Even [**31]  though plaintiff testified  [*597]  that he attached the ticket to his pants immediately after receiving it, and thus did not read it, he agreed that he was not pressured to do so,33 and had the opportunity to read it if he so chose.34

Based on the summary judgment record, the plaintiff’s concessions at oral argument and his supplemental deposition testimony sua sponte ordered by the court in an abundance of caution, the court finds that the undisputed facts demonstrate that plaintiff purchased the lift ticket, peeled it from its backing before attaching it to his clothing, had the opportunity to read both sides of it,35 and that “a reasonable person in plaintiff’s position” would have “known of the exculpatory provision.” Barnes, 128 N.H. at 107. The court therefore finds that plaintiff’s decision to not  [*598]  read the lift ticket release language does not render it unenforceable.36

C. Contemplation [**34]  of the parties

The final factor the court considers is whether the plaintiff’s claims “were within the contemplation of the parties.” Barnes, 128 N.H. at 107. This factor concerns whether plaintiff’s claims were within the scope of the release. Dean, 147 N.H. at 267. To determine the scope and application of a liability release agreement, the court must examine its language. Dean, 147 N.H. at 267. If “the release clearly and specifically indicates the intent to release the defendant from liability for personal injury caused by the defendant’s negligence, the agreement will be upheld.” Id. The court gives the language of the release “its common meaning and give[s] the contract itself the meaning that would be attached to it by a reasonable person.” Id. “All that is required” is for the language to “clearly and specifically indicate[] the intent to release the defendants from liability for personal injury caused by the defendants’ negligence . . . .” McGrath, 158 N.H. at 545.

While plaintiff’s counsel conceded at oral argument that a reasonable person would have recognized the lift ticket language as a release, he argues that it would only be understood as applying to “the inherent risks of skiing,” as enumerated in § 225-A:24,37 and not to the circumstances of plaintiff’s accident.38 As [**35]  explained below, this argument is based on an incomplete reading of the release and a flawed reading of persuasive New Hampshire Supreme Court precedent. It is therefore rejected.

Plaintiff argues that the first words of the release — “Skiing, snowboarding, and other winter sports are inherently dangerous”39 — limit the scope [**36]  of the release to  [*599]  the inherent risks of skiing as set forth in N.H. Rev. Stat. Ann. § 225-A:24, which, he posits, do not include collisions with unmarked or not visible snow-making equipment. The remainder of the release, however, is far broader, explicitly encompassing “all risks . . . of personal injury . . . resulting from . . . inherent or any other risks or dangers.” (Emphasis added). Additional language in the release is similarly broad:

I RELEASE MOUNT SUNAPEE RESORT, its parent companies, subsidiaries, affiliates, officers, directors, employees and agents FROM ANY AND ALL LIABILITY OF ANY KIND INCLUDING NEGLIGENCEwhich may result from conditions on or about the premises, operation of the ski area or its afacilities [sic] or from my participation in skiing or other winter sports, accepting for myself the full and absolute responsibility for all damages or injury of any kind which may result from any cause.40

(Bold emphasis in original; underlining added). While plaintiff acknowledges that his “participation in skiing” might trigger the release, he argues that the expansive “any and all” language is qualified by the first sentence’s reference to skiing as “inherently dangerous,” which, he asserts, warrants limiting [**37]  the release to the risks itemized in § 225-A:24.

In support of his “inherent risks” argument, plaintiff relies on Wright v. Loon Mountain Recreation Corp., 140 N.H. 166, 663 A.2d 1340 (1995), a case in which a horseback rider was kicked by her guide’s horse, allegedly due to the guide’s negligence. Id. at 168. The Court in Wright held that a release which first noted the “inherent hazards” of horseback riding “obscured” the later following exculpatory clause, part of which resembled the one employed here by Mount Sunapee. Id. at 170. But there is a significant textual difference between the release in
Wright and the one at issue here, and that difference was the lynchpin of the Wright Court’s analysis: the operative language of the Wright release affirmatively referred back to the “inherent hazards” language. In Wright, the exculpatory clause purporting to release the defendant from “any and all” liability began with the phrase “I therefore release . . .” Id. (emphasis added). The Court found the word “therefore” not only significant but dispositive, noting that it means, inter alia, “for that reason” and thus “cannot be understood without reading the antecedent [inherent hazards] language.” Id. Accordingly, the Court concluded, “[b]ecause the exculpatory [**38]  clause is prefaced by the term ‘therefore,’ a reasonable person might understand its language to relate to the inherent dangers of horseback riding and liability for injuries that occur “for that reason.”
41Id. The Court ultimately held that the negligence of a guide is not such an “inherent risk.” Id.

Unlike the release in Wright, however, the Mount Sunapee release contains no such “therefore” or other referential language which might call into question the breadth of the language that follows. As such, the court finds that the release  [*600]  “clearly state[s] that the defendant is not responsible for the consequences of his negligence,” Barnes, 128 N.H. at 107, and explicitly called particular attention “to the notion of releasing the defendant for liability for its own negligence.” Cf. Audley v. Melton, 138 N.H. 416, 419, 640 A.2d 777 (1994) (rejecting exculpatory clause because it failed to call particular attention to releasing defendant from liability). The court therefore finds that the Mount Sunapee release is not limited to the “inherent risks” of skiing enumerated in N.H. Rev. Stat. Ann. § 225-A:24, I. Accordingly, even assuming that Miller’s accident did not result from an “inherent risk” of skiing, his claim is nevertheless encompassed by the terms of the release and within the contemplation [**39]  of the parties.

D. Reckless, wanton or positive misconduct

After Mount Sunapee’s initial motion for judgment on the pleadings raised the lift ticket release as a defense, Plaintiff added four paragraphs to his suit in an Amended Complaint, all in support of his one negligence count. The new additions quote from a handwritten note on a “grooming report” prepared by Mount Sunapee Mountain Operations Manager Alan Ritchie two weeks prior to plaintiff’s accident. Ritchie’s note states the following: “keep the skier’s left guardrail 3′ from the tower guns at BTM (Hidden Hydrants below the snow[)]. Remove 2′ of snow from just above the Blue Shield around the Teckno fan gun.”42 Based solely upon this entry, Miller asserts that Mount Sunapee knew of buried snowmaking equipment and that failing to mark it or otherwise make it visible both violated its statutory duty and constituted “reckless, wanton, and positive acts of misconduct” from which it can not legally be released.43

In response, Mount Sunapee argues: 1) that the allegations do not support a claim for a statutory violation; 2) that New Hampshire law does not recognize extra-culpable, non-releasable categories of negligence; and 3) that [**40]  the Amended Complaint and attached documents fail, in any event, to set forth facts amounting to anything other than ordinary negligence. The court has already found no statutory violation44 and further finds that the complaint, even as amended, alleges nothing more than ordinary negligence.

1. Recklessness

Plaintiff argues that the additional allegations in the Amended Complaint state a claim for reckless behavior, which, he argues, is not within the purview of the release. The court finds that the new amendments do not allege conduct that is more culpable than negligence, which is subject to the terms of the Mount Sunapee release.45

The New Hampshire Supreme Court generally refers favorably to the Restatement of Torts and has done so with respect to its description of “reckless” conduct:

 [*601]  Under the Restatement [(Second) of Torts], § 500, at 587 (1965), conduct is “reckless” if it “would lead a reasonable man to realize, not only that his conduct creates an unreasonable risk of physical harm to another, but also that such a risk is substantially greater than that which is necessary to make his conduct negligent.” Id. The conduct “must involve an easily perceptible danger of death or substantial [**41]  physical harm, and the probability that it will so result must be substantially greater than is required for ordinary negligence.” Id.
comment a at 588.

Boulter v. Eli & Bessie Cohen Found., 166 N.H. 414, 421, 97 A.3d 1127 (2014).

As the Court noted in Thompson v. Forest, 136 N.H. 215, 220, 614 A.2d 1064 (1992), a litigant’s characterization of conduct as evincing a particular culpable mental state is not particularly useful. “Recklessness,” at a minimum, is conduct “where the known danger ceases to be only a foreseeable risk which a reasonable person would avoid, and becomes in the mind of the actor a substantial certainty.” Id. (quoting WP Keaton, et al., Prosser and Keaton on the Law of Torts § 8 (5th ed. 1984)). Here, notwithstanding the descriptive adjectives employed by the plaintiff, the facts and allegations pled do not suggest that, to anyone affiliated with Mount Sunapee, there was “a substantial certainty” that serious foreseeable harm would occur based on its alleged conduct or that Mount Sunapee’s conduct involved an unreasonable risk of physical harm “substantially greater than is required for ordinary negligence or that the risk was one involving an easily perceptible danger of death or substantial physical harm.” Boulter, 166 N.H. at 422.

Plaintiff relies on a recent New Hampshire Superior Court case involving an injured ski lift [**42]  passenger in which the trial judge held that the plaintiff’s allegations of recklessness were sufficient to survive a motion for summary judgment.46 In Perry v. SNH Dev., No. 2015-CV-00678, 2017 N.H. Super. LEXIS 32 (N.H. Super. Ct., Sept. 13, 2017) (Temple, J.), the child plaintiff was injured after first dangling from, and then falling from, a chair lift into which she was improperly loaded. 2017 N.H. Super. LEXIS 32 at *33. There, the plaintiff successfully pled facts that alleged recklessness and avoided the ski area‘s enforceable negligence release. 2017 N.H. Super. LEXIS 32 at *23. Specifically, the plaintiffs in Perry alleged that the ski area‘s:

employee(s)[‘] total and complete failure to monitor the safe and proper loading of the Rocket chair lift in any fashion, coupled with the undisputed failure (actions or inactions) to stop the chair lift once a life threatening emergency was clearly in progress and ongoing for a considerable period of time, were failures to do acts which the employees had a duty to perform for [plaintiffs] and constitute a reckless disregard of safety.

2017 N.H. Super. LEXIS 32 at *27. The court denied the ski area‘s motion for summary judgment on the recklessness issue, first noting the allegation that there “were multiple employees of Crotched Mountain in or around [**43]  the area observing that Sarah was not able to properly and/or safely board the Rocket chair lift; but rather [was] dangling from the chair lift.” 2017 N.H. Super. LEXIS 32 at *33. The court found this allegation sufficient to support an inference that the ski area‘s employees  [*602]  “knew that [the child plaintiff] was not properly loaded on the chair lift, but chose not to act.” Id. The court additionally cited the allegations that the ski area‘s employees knew that their failure to “stop the chair lift once a life threatening emergency was clearly in progress” would create an “unreasonable risk of physical harm or death.” Id. These facts, the Superior Court concluded, were sufficient to establish a claim of reckless conduct. Id.

In reaching its decision, the Perry court assumed that recklessness involved a defendant’s “conscious choice.” 2017 N.H. Super. LEXIS 32 at *32 (citing State v. Hull, 149 N.H. 706, 713, 827 A.2d 1001 (2003)). Here, plaintiff argues that a reasonable inference can be made that Mount Sunapee knowingly disregarded the risk of harm posed by hidden snowmaking equipment, and that they “knew that ‘hidden’ hydrants posed a danger, but chose not to act.47

The court finds no such inference. As noted, the amended allegations do not pertain to a time or place related to Miller’s accident. [**44]  There is nothing in the Ritchie affidavit that supports an allegation that Mount Sunapee made a “conscious choice” to create a “risk that was substantially greater than is required for ordinary negligence or that . . . [involved] an easily perceptible danger of death or substantial physical harm.” Boulter, 166 N.H. at 422 (internal quotation marks omitted). Significantly, the allegations in this case stand in stark contrast to those in Perry, where ski area employees allegedly ignored a nearby lift passenger already in obvious danger, a child literally dangling from the moving chair lift. Under plaintiff’s theory, any collision with buried snowmaking equipment would constitute a claim for recklessness.

One of the cases cited in Perry supports the court’s conclusion. In Migdal v. Stamp, 132 N.H. 171, 564 A.2d 826 (1989), the plaintiff, a police officer, was shot by a 15-year old who had been involuntarily hospitalized due to mental health issues. Id. at 173. The day after his release into his parents’ custody, the teen took several guns and hundreds of rounds of ammunition from an unsecured gun cabinet in their home, fired them throughout the house, and then shot and injured the plaintiff, who responded to the scene. Id. The injured officer sued the shooter’s parents, [**45]  who sought dismissal based on the “fireman’s rule.”48 After first noting that the rule bars claims of negligent, but not reckless, conduct, id. at 176, the Court concluded that the plaintiff had adequately pled recklessness by alleging that the parents “failed to seek recommended medical treatment” for their son and allowed him access to “an array of firearms and ammunition,” despite their knowledge that their son “was suffering from mental and emotional instabilities,” had “exhibited dangerous propensities,” and had ransacked and vandalized the house the day before. Id. Mount Sunapee’s conduct — failure to mark or make visible the snow gun holder — is neither of the same type nor degree as the defendants’ conduct in Migdal.

A ski case from the District of Massachusetts is also instructive. In Brush v. Jiminy Peak Mountain, 626 F. Supp. 2d 139 (D. Mass. 2009), a ski racer was injured when she lost control and collided with a ski tower support located off the trail. Id.
 [*603]  at 143. In suing, inter alia, the ski area, the plaintiff alleged that netting and other safety devices should have been placed around the support, as required by certain ski racing standards and as had been done by the defendant in the past. Id. at 145. In order to avoid application of a release, the plaintiff asserted [**46]  a claim for gross negligence, which, under Massachusetts law, is a less culpable standard than recklessness. Id. at 151 (citing Altman v. Aronson, 231 Mass. 588, 121 N.E. 505, 506 (Mass. 1919)). The Court concluded that plaintiff had alleged only simple negligence. Id. The Court first observed that “[t]here is no evidence in the record, and indeed no allegation, that any of the Defendants, or anyone at the competition, became aware that there was an area of the trail without netting where netting was normally placed and declined to remedy the situation.” Id. Ultimately, the Court held, “[a]t most there was a collective failure to take a step that might have lessened the injuries suffered by Plaintiff. No reasonable jury could find that this simple inadvertence, no matter how tragic its consequences, constituted gross negligence.” Id.

The court views the conduct alleged here as much more akin to that alleged in Brush — which alleged conduct that was less culpable than recklessness — than that in Perry
or Migdal. The factual allegations in this case fall far short of recklessness. First, as previously noted, the grooming report on which plaintiff relies is remote both in time and location. Next, the conduct alleged here is significantly less egregious than the [**47]  allegations in Perry, where ski area employees allegedly ignored a nearby passenger already in danger of falling from a lift chair, or the conduct in Migdal, where the defendant parents, one day after their son had exhibited mental instability, ransacked the family home, and exhibited dangerous tendencies, failed to seek treatment for him and to secure multiple firearms and ammunition. As in Brush, the most that can be said here is that Mount Sunapee failed to take a step that — while not legally required, see supra, § III.A.1 — might have prevented plaintiff’s accident. These allegations do not support a claim that their acts or omissions in not clearing snow away from a snow gun holder in an ungroomed area “were substantially more serious” than ordinary negligence. Boulter, 166 N.H. at 422.
49

2. Wanton and positive misconduct

In an attempt to characterize his claims in such a way to avoid the language of the release, plaintiff’s Amended Complaint describes them as “wanton and positive acts of misconduct,” that is, more culpable than negligence, but not intentional.50 The court, however, has already determined that the Complaint alleges no more than ordinary negligence, so this argument fails.

3. Potential [**48]  certification

If the court had found that the facts alleged by the plaintiff could constitute conduct more culpable than negligence, it would have considered certifying an unresolved question to the New Hampshire  [*604]  Supreme Court: whether conduct more culpable than negligence, but less than intentional could be the subject of a release like the one at issue here. See
N.H. Sup. Ct. R. 34. In the absence of such allegations, certification is unnecessary.

IV. Conclusion

The undisputed factual record shows that plaintiff purchased and affixed to his clothing a lift ticket at Mount Sunapee that unambiguously released the ski area from liability from its own negligence, that such a release does not violate public policy, and that plaintiff’s signature was not required to effectuate its terms. Furthermore, there is no material factual dispute that plaintiff had the opportunity to read both the cautionary language on the ticket’s peel-off backing and the release language itself, that he would have understood that language to constitute a release and that a reasonable person in his position would have understood that the release exculpated Mount Sunapee from its own negligence.

As plaintiff has alleged only that Mount [**49]  Sunapee’s negligence caused his injuries, and that the facts he alleges do not constitute conduct more culpable than negligence, the court finds that plaintiff’s claims fall within the ambit of the Mount Sunapee release and that the release is enforceable against the plaintiff. Therefore, defendant’s motion for judgment on the pleadings, having been converted to a motion for summary judgment51 is GRANTED.52

SO ORDERED.

/s/ Joseph N. Laplante

Joseph N. Laplante

United States District Judge

March 31, 2018


No matter who created the activity or the risk on Town’s land, using the risk was an outdoor recreation activity and protected by the New Hampshire Recreational Use Statute.

Besides if you stand in front of a rope swinging when someone is using it attempting to slap the swinger’s feet as he goes by, and you get flattened by the swinger you should not be able to recover. 

Kurowski v. Town of Chester, 2017 N.H. LEXIS 174

State: New Hampshire, Supreme Court of New Hampshire

Plaintiff: Jay Kurowski F/N/F Christopher Kurowski

Defendant: Town of Chester

Plaintiff Claims: acted negligently and willfully or intentionally by failing to remove the rope swing or post warning signs.

Defendant Defenses: New Hampshire Recreational Use Statute 

Holding: For the Defendant Town 

Year: 2017 

Summary 

The Town had a park with a pond. Someone had put up a rope swing that allowed you to swing into the pond. The town knew about the rope swing and knew that it was possibly hazardous. However, the town never removed the rope swing or posted signs about the hazards it presented. 

The minor plaintiff was standing in front of someone using the rope swing attempting to hit the person’s feet when he was clobbered by the person on the swing suffering injuries. 

The father of the plaintiff sued. The trial court and the appellate court dismissed the case because the New Hampshire Recreational Use Statute provided immunity to the Town for outdoor recreational activities such as this one.

Facts 

The defendant city had a park with a pond. Someone put up a rope swing to use to swing into the pond. The city did not create the rope swing. Several people complained to the city about the rope swing and asked for it to be taken down or signs put up warning against its use.

The Town owns and maintains the Wason Pond Conservation and Recreation Area, which includes walking paths and Wason Pond, and is open to the public free of charge. Since approximately 2012, a rope swing has been attached to a tree overhanging the pond. Neither the plaintiff nor the Town constructed or maintained the swing. People use the rope swing to fling themselves over and into the pond.

The plaintiff, a minor, was at the rope swing. Another person was using the swing to enter the water. The plaintiff was attempting to hit the person’s feet. The person on the swing and the plaintiff collided injuring the plaintiff.

On August 20, 2015, Christopher was at the pond, standing in the path of a person using the swing. While Christopher was attempting to touch the feet of the person swinging on the rope, the two collided, and Christopher was seriously injured.

The father of the minor filed this lawsuit. The city filed a motion for summary judgment asking the compliant be dismissed because the city as the landowner was protected by the New Hampshire Recreational Use Statute

The trial court agreed and dismissed the case. The plaintiff appealed. 

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

The plaintiff first argued that using a rope swing to swing into a pond was not an outdoor recreation activity as defined under the New Hampshire Recreational Use Statute. The court quickly shot this down because the statute did not list everything that was to be protected by the statute it only listed a few things and started that list with the language “including, but not limited to….

The court had found other decisions it had made where it interpreted outdoor recreation activities as covered under the statute even though they were not identified in the statute. 

By its plain terms, the statute’s list of outdoor recreational activities is not exhaustive. Indeed, we have previously applied the principle of ejusdem generis to this provision and concluded that an activity not specifically enumerated — but similar in nature to the activities listed in the statute — may constitute an “outdoor recreational activity.” The principle of ejusdem generis provides that, when specific words in a statute follow general ones, the general words are construed to embrace only objects similar in nature to those enumerated by the specific words.

Looking at the statute and the activity the court found the activity was a water sport and thus covered under the statute. 

We hold that Christopher was actively engaged in an outdoor recreational pursuit sufficiently similar in nature to the enumerated activity of “water sports” to constitute an “outdoor recreational activity” under RSA 212:34, I(c). 

The next argument made by the plaintiff was because the town did not supply the swing, it was not covered under the New Hampshire Recreational Use Statute. The court quickly shot this down finding it does not matter what was used in an outdoor recreational activity or who supplied it.

However, the identity of the person or entity providing the equipment or structure used in an outdoor recreational activity is immaterial. See id. at 56 (finding immaterial the fact that playground equipment used in outdoor activity was provided by landowner rather than user). Indeed, many of the enumerated outdoor recreational activities, for example, hunting, camping, hiking, bicycling, and snowmobiling, see RSA 212:34, I(c),….

The plaintiff next argued the activity was not an outdoor recreational activity because the landowner did not authorize the activity and because the activity was hazardous. The court seemed a little irked when it shot this argument down.

In fact, the statute specifically contemplates that immunity will apply even if the activity at issue involves a known hazardous condition. See RSA 212:34, II (“A landowner owes no duty of care to keep the premises safe for entry or use by others for outdoor recreational activity or to give any warning of hazardous conditions, uses of, structures, or activities on such premises … . (emphasis added)).

The next argument made by the plaintiff centered around whether or not the actions of the town willful when it failed to post signs about hazards of the activity. The plaintiff argued one version of the definition of the term willful, and the town argued a second. The court found that under either definition, the town was still immune under the statute. Additionally, the court found the actions of the
town were not willful because the plaintiff could not establish the town knew or should have known that an injury would probably result from the activity. 

An allegation that a landowner knew about a particular hazard and did nothing is insufficient to establish that the landowner knew or should have known that injury would probably result from that hazard. At most, such allegations sound in negligence. Therefore, even assuming that the Spires definition applies, we conclude that the plaintiff’s allegations are insufficient as a matter of law to establish that the Town acted “willfully.”

The plaintiff then argued the acts of the town were intentional. That part of the case was dismissed by the trial court because the court found the plaintiff had not alleged enough facts to prove a case of intentional acts on the part of the town. The plaintiff’s argument was:

The plaintiff argues that the Town’s conduct constituted an intentional act for the same reasons he asserts the Town’s conduct was willful — because the Town acknowledged that the rope swing was a hazard, was warned about that hazard on three occasions between 2012 and 2015, did nothing to remove it, and did not post warning signs. 

The court did not agree. There was no proof or pleading that the town had actual or constructive knowledge that its conduct, in failing to post signs or take down the swing, was conduct that was a substantially certain to result in an injury.

At most, the plaintiff’s allegations — that the Town was aware of a hazardous condition or activity and failed to act — sound in negligence. (concluding that allegations that defendant disregarded a substantial risk and failed to act sound in negligence). Accordingly, we hold that the trial court did not err when it found that the plaintiff alleged
insufficient facts to show that the Town’s conduct was willful or intentional.

The decision of the trial court was upheld, and the complaint dismissed.

So Now What? 

This case shows two simple truths for the outdoor recreation industry today. The first, plaintiffs are going to greater lengths to create arguments to litigate over outdoor recreation injuries. The work the plaintiff put in, in order to redefine each word of the statute in a way that did not protect the Town was
substantial and lengthy. 

The second is the statutes have to be written in a way that broadens the protections the legislature intends to give the courts the leeway to dismiss frivolous claims like this. Frivolous because I believe assumption of the risk would be the next defense.

If you stand in front of someone who is holding on to a rope swinging in your direction, and you do so willingly, you assume the risk of getting flattened.

What do you think? Leave a comment.

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Non-governmental park not liable under Georgia Recreational Use Statute because cyclists failed to negotiate a barricade. The dangerous condition was open, obvious and visible to all including the deceased.

Because cyclists failed to look up and did not see the barricades in time, does not change the fact the barricades were visible for hundreds of feet.

Stone Mountain Memorial Association v. Amestoy, 337 Ga. App. 467; 788 S.E.2d 110; 2016 Ga. App. LEXIS 358

State: Georgia; Court of Appeals of Georgia

Plaintiff: Nancy Amestoy

Defendant: Stone Mountain Memorial Association

Plaintiff Claims: (1) was liable for Martin’s death due to its failure to warn of the allegedly dangerous condition of the barricades, (2) had actual knowledge that the barricades posed a risk of serious bodily injury or death, and (3) willfully failed to warn of the alleged danger (despite knowing of the risk posed by the barricades).

Defendant Defenses: Georgia Recreational Use Statute

Holding: For the Defendant at trial Court, Plaintiff on appeal 

Year: 2016

Summary

The Georgia Recreational Use Statute extends immunity to non-governmental landowners. Here a cyclist died after failing to look up and see barricades blocking a road. Because the barricades were open and obvious, the Recreational Use Statute protected the landowner from suit. 

Facts 

The deceased was on a bike ride. The road he was riding had been closed for a foot race. The closure was  accomplished by two saw horse barricades. The deceased in attempting to negotiate between them fell suffering head injuries, while wearing a helmet, and died.

…between 7:30 and 7:45 a.m. on the day in question, officers with SMMA’s public-safety department engaged in temporary traffic-control efforts on portions of Stone Mountain Park’s Robert E. Lee Boulevard in anticipation of a 5k walk/run event that was scheduled to begin at 8:00 a.m. These temporary traffic-control efforts consisted of two saw-horse style barricades placed  side-by-side across the road’s southbound lanes, spanning approximately ten-feet wide with an approximately one-and-a-half foot gap between them. Both barricades bore orange and white stripes and “do not enter” signs.

It appeared to witnesses that the deceased did not look up until the last minute to see the barricades. 

…Martin Amestoy was observed riding his bicycle toward the barricades at what a witness believed was a “safe, normal speed”; however, Amestoy’s head was down. Amestoy then traveled between the barricades, striking the inside corner of the lefthand barricade with his handlebar, and was thrown forward off of his bike.3 Although he was wearing a helmet, Amestoy suffered severe head trauma and died later that day. 

The plaintiff, wife of the deceased, sued for:

(1) was liable for Martin’s death due to its failure to warn of the allegedly dangerous condition of the barricades, (2) had actual
knowledge that the barricades posed a risk of serious bodily injury or death, and (3) willfully failed to warn of the alleged danger (despite knowing of the risk posed by the barricades).

The defendant filed a motion for summary judgment stating it was not liable because of the Georgia Recreational Use Act. The plaintiff argued that the exception to the act applied, if the landowner of and did not warn of a dangerous condition. The Trial court agreed and the defendant immediately appealed that order. 

SMMA responded and filed a motion for summary judgment, contending that it was immune from suit under the RPA. The trial court ultimately denied SMMA’s motion when it concluded that genuine issues of material fact remained as to whether (1) the barricades were a dangerous condition and (2) SMMA had actual knowledge that this condition was dangerous.

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

The defendant appealed the decision based upon the facts that:

… (1) there was no evidence that it had actual knowledge of a dangerous condition, (2) the allegedly dangerous condition was
open and obvious as a matter of law, and (3) there was no evidence that it willfully failed to warn of the allegedly dangerous condition. Because the allegedly dangerous condition–i.e., the barricades blocking the southbound lanes of Robert E. Lee Boulevard–was open and obvious as a matter of law….

Under the Georgia Recreational Use Act, the landowner owes no duty of care to keep the premises safe for others entering the land for recreational purposes.

In enacting the RPA, the General Assembly sought to “encourage property owners to make their property available to the public for recreational purposes by limiting the owners’ liability.”8 In this regard, OCGA § 51-3-22 provides that “an owner of land owes no duty of care to keep the premises safe for entry or use by others for recreational purposes or to give any warning of a dangerous condition, use, structure, or activity on the premises to persons entering for recreational purposes.”

There is a liability for willful or malicious failure to guard or warn against a dangerous condition, use, structure or activity. Under Georgia’s law:

…”willful failure” involves “a conscious, knowing, voluntary, intentional failure, rather than a mere inadvertent, accidental,  involuntary, inattentive, inert, or passive omission.” And malice requires either “an actual intent to cause the particular harm produced or the wanton and [willful] doing of the act with an awareness of the plain and strong likelihood that harm may result.”  Thus, in order for the “willful or malicious failure” exception to apply, Nancy Amestoy must show that the property owner  (SMMA) had actual knowledge that (1) the property was being used for recreational purposes; (2) a condition existed involving unreasonable risk of death or serious bodily harm; (3) the condition was not apparent to those using the property; and (4) having the foregoing knowledge, the property owner chose not to warn users in disregard of the possible con-sequences. Constructive knowledge is insufficient to meet this burden of proof, and the property owner has no duty to inspect the property. Importantly, the plaintiff must satisfy each prong of this four-part test to succeed against a recreational property owner under this exception.

The court held the plaintiff failed to produce any evidence to create a jury question on whether or not the condition was not apparent to those using the property, the third prong of the test.

The court cited witness statements and statements from the investigators that the barriers where visible at least for hundreds of feet. 

Considering the above testimony, Nancy Amestoy presented no evidence that SMMA had actual knowledge that the barricades were not apparent to park users when they were open and obvious, as overwhelmingly demonstrated by the foregoing testimony and photographic evidence.

The Appellate Court reversed the trial court and granted the defendant’s motion for summary judgment based on the Georgia Recreational Use Statute

So Now What? 

The first take away is the Georgia Recreational Use Statute protects parks owned non-governmental landowners from suit. The second is, even though the statute has an exception for “willful or malicious failure to guard or warn against a dangerous condition, use, structure, or activity,” the landowner must have actual knowledge, not just constructive knowledge of the dangerous condition.

Here because the barricades were visible for hundreds of feet, the barricades did not constitute a dangerous condition. 

If you are a cyclist, look up once in a while. 

What do you think? Leave a comment.

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summary judgment, visible, punctuation, warn, recreational purposes, property
owners, warning, ‘willful, feet, bicyclist, matter of law, issues of material
fact, recreational, genuine, guard, user, captain, injured party, subjective,
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Recreational Use Statute, Recreational Use, Stone Mountain Memorial
Association, Non-governmental Park,

 

 

 


Stone Mountain Memorial Association v. Amestoy, 337 Ga. App. 467; 788 S.E.2d 110; 2016 Ga. App. LEXIS 358

Stone Mountain Memorial Association v. Amestoy, 337 Ga. App. 467; 788 S.E.2d 110; 2016 Ga. App. LEXIS 358

Stone Mountain Memorial Association v. Amestoy.

A16A0056.

COURT OF APPEALS OF GEORGIA

337 Ga. App. 467; 788 S.E.2d 110; 2016 Ga. App. LEXIS 358

June 21, 2016, Decided

HEADNOTES Georgia Advance Headnotes

(1) Torts. Real Property Torts. General Premises Liability. The wife of a bicyclist who died of a head injury after striking a barricade that had been placed across the road in a public park to protect runners in a road race failed to produce sufficient evidence to create a jury question as to the park owner’s actual knowledge that the barricades were not apparent to those using the property as required to prove an exception to immunity under OCGA § 51-3-25 (1) of the Recreational Property Act; the road was straight and open and the barricades were highly visible.

COUNSEL: Samuel S. Olens, Attorney General, Kathleen M. Pacious, Deputy Attorney General, Loretta L. Pinkston, Kirsten S. Daughdril, Senior Assistant Attorneys General, Kristine K. Hayter, Assistant Attorney General, for appellant.

Childers, Schleuter & Smith, William A. Parker, Jr., for appellee.

JUDGES: [***1] DILLARD, Judge. Phipps, P. J., and Peterson, J., concur.

OPINION BY: DILLARD

OPINION

[*467] [**111] Dillard, Judge.

Stone Mountain Memorial Association (“SMMA”) appeals from the trial court’s denial of its motion for summary judgment in a premises-liability and wrongful-death action brought by Nancy Amestoy following her husband Martin’s tragic death in a bicycling accident at Stone Mountain Park. Specifically, SMMA contends that the trial court erred in denying its motion for summary judgment because it is immune from liability under the Recreational Property Act (“RPA”).1 Because we agree with SMMA that the RPA immunizes it from liability, we reverse.

1 See OCGA § 51-3-20 et seq.; see also OCGA § 51-3-20 [HN1] (“The purpose of this article is to encourage owners of land to make land and water areas available to the public for recreational purposes by limiting the owners’ liability toward persons entering thereon for recreational purposes.”).

Viewed in the light most favorable to Nancy Amestoy (i.e., the nonmoving party),2 the record reflects that between 7:30 and 7:45 a.m. on the day in question, officers with SMMA’s public-safety department engaged in temporary traffic-control efforts on portions of Stone Mountain Park’s Robert E. Lee Boulevard in anticipation of a 5k walk/run event that [***2] was scheduled to begin at 8:00 a.m. These temporary traffic-control efforts consisted of two saw-horse style barricades placed side-by-side across the road’s southbound lanes, spanning approximately ten-feet wide with an approximately one-and-a-half foot gap between them. Both barricades bore orange and white stripes and “do not enter” signs.

2 See, e.g., Holcomb v. Long, 329 Ga. App. 515, 517 (765 SE2d 687) (2014).

The SMMA major stationed at these barricades manned the post for a few minutes after they were erected, but he left suddenly when [*468] overcome by an urgent need to use the restroom. While the major was in the restroom, the SMMA captain–who was stationed at a separate traffic-control post–saw two bicyclists maneuver around the barricades at the major’s post. Then, six or seven minutes later, Martin Amestoy was observed riding his bicycle toward the barricades at what a witness believed was a “safe, normal speed”; however, Amestoy’s head was down. Amestoy then traveled between the barricades, striking the inside corner of the lefthand barricade with his handlebar, and was thrown forward off of his bike.3 Although he was wearing a helmet, Amestoy suffered severe head trauma and died later that day.

3 Nancy Amestoy alleges that her husband may [***3] have been attempting to avoid a collision with the barricades by trying to ride between them. Officers could not speak to Martin after the collision to ascertain his version of events because he was unconscious. But Nancy’s expert opined that “once [Martin] was aware of [the barricades,] his only path of travel was between the two barricades.”

Thereafter, Nancy Amestoy filed suit against SMMA in her capacity as surviving spouse and on behalf of Martin’s estate. In doing so, she asserted that SMMA (1) was liable for Martin’s death due to its failure to warn of the allegedly dangerous condition of the barricades, (2) had actual knowledge that the barricades posed a risk of serious bodily injury or death, and (3) willfully failed to warn of the alleged danger (despite knowing of the risk posed by the barricades). SMMA responded and filed a motion for summary judgment, contending that it was immune [**112] from suit under the RPA. The trial court ultimately denied SMMA’s motion when it concluded that genuine issues of material fact remained as to whether (1) the barricades were a dangerous condition and (2) SMMA had actual knowledge that this condition was dangerous. The trial court did, however, [***4] certify the denial of SMMA’s motion for immediate review, and this Court granted SMMA’s application for interlocutory appeal. This appeal follows.

At the outset, we note that [HN2] on appeal from the denial of a motion for summary judgment, we conduct a de novo review of the record.4 [HN3] To prevail on a motion for summary judgment, the moving party must demonstrate that there is no genuine issue of material fact, and that the undisputed facts, viewed in the light most favorable to the nonmovant, entitle the moving party to judgment as a matter of law.5 A defendant may do this by showing the trial court that the record [*469] reveals no evidence sufficient to create a jury issue on at least one essential element of the plaintiff’s case.6 Indeed, if there is no evidence sufficient to create a genuine issue of material fact as to “any essential element of the plaintiff’s claim, that claim tumbles like a house of cards.”7 With these guiding principles in mind, we turn now to SMMA’s arguments on appeal.

4 See Gayle v. Frank Callen Boys & Girls Club, 322 Ga. App. 412, 412 (745 SE2d 695) (2013) (“A de novo standard of review applies to an appeal from a grant [or denial] of summary judgment[.]” (punctuation omitted)).

5 See id. [HN4] (“Summary judgment is proper when there is no genuine issue of material [***5] fact and the movant is entitled to judgment as a matter of law.” (punctuation omitted)).

6 See Farris v. First Fin. Bank, 313 Ga. App. 460, 462 (722 SE2d 89) (2011) [HN5] (“This burden is met by a defendant when the court is shown that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of the plaintiff’s case.” (punctuation omitted)).

7 La Quinta Inns, Inc. v. Leech, 289 Ga. App. 812, 812 (658 SE2d 637) (2008) (punctuation omitted).

SMMA argues that the trial court erred in denying its motion for summary judgment based upon immunity under the RPA because (1) there was no evidence that it had actual knowledge of a dangerous condition, (2) the allegedly dangerous condition was open and obvious as a matter of law, and (3) there was no evidence that it willfully failed to warn of the allegedly dangerous condition. Because the allegedly dangerous condition–i.e., the barricades blocking the southbound lanes of Robert E. Lee Boulevard–was open and obvious as a matter of law, SMMA was entitled to summary judgment.

[HN6] In enacting the RPA, the General Assembly sought to “encourage property owners to make their property available to the public for recreational purposes by limiting the owners’ liability.”8 In this regard, OCGA § 51-3-22 provides [***6] that “an owner of land owes no duty of care to keep the premises safe for entry or use by others for recreational purposes or to give any warning of a dangerous condition, use, structure, or activity on the premises to persons entering for recreational purposes.”

8 Gayle, 322 Ga. App. at 413 (punctuation omitted). [HN7] The RPA applies when the property is “open to the public for recreational purposes and the owner does not charge an admission fee.” Id. at 414. It is undisputed between the parties that Stone Mountain Park is open to the public for recreational purposes and does not charge an admission fee. See OCGA § 51-3-21 (a) (” ‘Charge’ means the admission price or fee asked in return for invitation or permission to enter or go upon the land.”); see also Hogue v. Stone Mtn. Mem. Ass’n, 183 Ga. App. 378, 380 (1) (358 SE2d 852) (1987) (holding that initial motor-vehicle fee was “a permit for the use of a vehicle in the park” and that “the trial court was authorized to conclude as a matter of law that this fee did not constitute a charge for the recreational use of the parkland itself”).

[HN8] Notwithstanding the RPA’s general provision for immunity from liability, there is an exception “[f]or willful or malicious failure to guard or warn against a dangerous condition, use, structure, or activity.”9 But as we have previously held, [***7] “willful failure” involves “a conscious, knowing, voluntary, intentional failure, rather than a mere inadvertent, accidental, involuntary, inattentive, inert, or passive [*470] [**113] omission.”10 And malice requires either “an actual intent to cause the particular harm produced or the wanton and [willful] doing of the act with an awareness of the plain and strong likelihood that harm may result.”11 Thus, in order for the “willful or malicious failure” exception to apply, Nancy Amestoy must show that the property owner (SMMA) had actual knowledge that (1) the property was being used for recreational purposes;12 (2) a condition existed involving unreasonable risk of death or serious bodily harm; (3) the condition was not apparent to those using the property; and (4) having the foregoing knowledge, the property owner chose not to warn users in disregard of the possible consequences.13 Constructive knowledge is insufficient to meet this burden of proof, and the property owner has no duty to inspect the property.14 Importantly, the plaintiff must satisfy each prong of this four-part test to succeed against a recreational property owner under this exception.15

9 OCGA § 51-3-25 (1); see also Gayle, 322 Ga. App. at 415.

10 Collins v. City of Summerville, 284 Ga. App. 54, 56 (643 SE2d 305) (2007) (punctuation omitted); accord Cooley v. City of Carrollton, 249 Ga. App. 387, 388 (547 SE2d 689) (2001); Spivey v. City of Baxley, 210 Ga. App. 772, 773 (437 SE2d 623) (1993).

11 Collins, 284 Ga. App. at 56 (punctuation [***8] omitted); accord Gayle, 322 Ga. App. at 415.

12 The parties do not dispute that the first prong of this test is satisfied.

13 See Gayle, 322 Ga. App. at 415 (listing the four requirements); Collins, 284 Ga. App. at 56 (same); Spivey, 210 Ga. App. at 773 (same); Quick v. Stone Mtn. Mem. Ass’n, 204 Ga. App. 598, 599 (420 SE2d 36) (1992) (same); see also Edmondson v. Brooks Cty. Bd. of Educ., 205 Ga. App. 662, 663 (423 SE2d 413) (1992) (noting that, in the fourth prong, ” ‘[t]his knowledge’ refers to the three previously listed facts of which the owner must have actual knowledge in order to be liable for ‘choosing not to guard or warn’ ” (punctuation omitted)).

14 See Collins, 284 Ga. App. at 56 (“Constructive knowledge is not sufficient, and no duty to inspect is imposed on the property owner.”); Ga. Dep’t of Transp. v. Thompson, 270 Ga. App. 265, 269 (2) (a) (606 SE2d 323) (2004) (“This test excludes either constructive knowledge or a duty to inspect.” (punctuation omitted)).

15 See, e.g., Lee v. Dep’t of Nat’l Res., 263 Ga. App. 491, 493-94 (3) (588 SE2d 260) (2003) (holding that, despite uncontroverted satisfaction of first prong, failure to satisfy other prongs was fatal to claim); Edmondson, 205 Ga. App. at 663 (noting that, in holding that RPA immunized defendant from liability, the issue of liability under the RPA is “resolved by a four-part test” and the defendants “rel[ied] on the absence of the third prong of the test”).

At the outset, [HN9] we reject any suggestion that the four-part test does not require actual knowledge as to each prong. Although we have not always been precise in our recitation of the analytical framework,16 the notion that actual knowledge is not required by the foregoing [***9] four-part test is belied by the plain language of the test adopted by this Court in McGruder v. Georgia Power Co.,17 by our [*471] explanation and application of the test in subsequent cases,18 and even by other jurisdictions that have construed the test employed in Georgia.19 (1) And here, Nancy [**114] Amestoy failed to produce any evidence to create a jury question as to the third prong of the test–that is, that SMMA had actual knowledge that the barricades were not apparent to those using the property.20 As the trial court noted in its order, the road leading up to the barricades is straight and open. Indeed, witnesses observed two other cyclists negotiate their bicycles around the barricades only minutes before Martin Amestoy’s accident. Additionally, not only does the photographic evidence demonstrate that the barricades were highly visible, but testimony by numerous SMMA public-safety personnel established that they believed this to be the case.

16 See Gayle, 322 Ga. App. at 415; Collins, 284 Ga. App. at 56; Norton v. Cobb Cty., 284 Ga. App. 303, 307 (3) (643 SE2d 803) (2007) (physical precedent only).

17 126 Ga. App. 562, 563-64 (1) (191 SE2d 305) (1972) (“In the context of the whole statute, it would seem that a wilful failure to guard or warn would require actual knowledge of the owner that its property is being used for recreational purposes; that a condition exists involving [***10] an unreasonable risk of death or serious bodily harm; that the condition is not apparent to those using the property; and that having this knowledge, the owner chooses not to guard or warn, in disregard of the possible consequences.”), reversed on other grounds by 229 Ga. 811 (194 SE2d 440) (1972); see also Ga. Marble Co. v. Warren, 183 Ga. App. 866, 867 (1) (360 SE2d 286) (1987) (adopting the four-part test as previously set forth in McGruder v. Ga. Power Co., and noting that “[a]lthough the test was turned into dicta by the Supreme Court’s ruling that the RPA was not applicable in that case, it is sound”).

18 See Ray v. Ga. Dep’t of Nat’l Res., 296 Ga. App. 700, 702 (1) (675 SE2d 585) (2009); Lee, 263 Ga. App. at 493-94 (3); Thompson, 270 Ga. App. at 269 (2) (a); S. Gwinnett Athletic Ass’n v. Nash, 220 Ga. App. 116, 119 (1) (469 SE2d 276) (1996); Spivey, 210 Ga. App. at 773; Quick, 204 Ga. App. at 599; Edmondson, 205 Ga. App. at 663; Warren, 183 Ga. App. at 867 (1).

19 Hendrickson v. Ga. Power Co., 80 FSupp2d 1374, 1379 (III) (B) (M.D. Ga. 2000) (acknowledging that this Court uses a four-part test, and reciting test so as to make clear that defendant must have “actual knowledge” as to the first three prongs); Ex parte City of Geneva, 707 So2d 626, 629 n.2 (Ala. 1997) (construing Alabama’s recreational-use statute and observing that “the four-part ‘actual knowledge’ test of [Ala. Code] § 35-15-24 [(which applies ‘actual knowledge’ to the first three prongs of test)] appears likely to be a codification of the test employed by the state courts of Georgia when determining whether a noncommercial recreational landowner may be liable for ‘willful … failure to guard or warn against a dangerous condition, use, [***11] structure, or activity.’ “).

20 See Ray, 296 Ga. App. at 702 (2) (“The … third prong of this test was not met, because no evidence was presented that appellees had actual knowledge of a condition that was not apparent to persons using the property.”); Nash, 220 Ga. App. at 119 (1) (reversing denial of motion for summary judgment when, inter alia, “even assuming for the sake of argument that the unfinished bleachers presented a dangerous condition, there is no evidence that the [defendant] had any knowledge that this condition was not apparent to people using the property”); Edmondson, 205 Ga. App. at 663 (“[The third] prong requires plaintiffs to show that defendants actually knew that the dangerous condition of the merry-go-round was not apparent to those using the playground.”).

The testimony from SMMA personnel included that of a corporal who assisted in the investigation after the accident, and who testified that (1) the “barricades were plainly visible for quite a distance,” (2) the barricades were visible “for hundreds of feet,” (3) the sun was shining on the morning in question, and (4) there was “a great deal of visibility.” Likewise, an SMMA officer who performed an accident investigation, including taking various measurements to construct a to-scale diagram and [***12] conducting a “conspicuity test,” estimated that [*472] the barricades would have been visible from “a couple hundred yards” up Robert E. Lee Boulevard. More specifically, the major who was stationed at the barricades estimated that the distance at which they were visible would have been 200 to 250 feet, though he did acknowledge that on the morning in question, “[t]he way the sun was up, [a cyclist or motorist] would possibly [have] been looking into the sun.” Lastly, the SMMA captain calculated that the distance from the first line of sight to the barricades was one-tenth of a mile, or 528 feet, concluding that the barricades were “highly visible.” The captain also echoed other testimony that “[i]t was a clear day, the sun was out, [and] visibility was good.”

Finally, Nancy Amestoy’s expert testified that from his position and speed on a bicycle, Martin Amestoy likely would have seen the gap between the barricades when he was approximately fifteen feet away, giving him about one-half of a second to react. But when questioned about the distance from which the barricades themselves would have been visible, the expert testified that he did not “have an answer for that” and that he did not “know how far [***13] back they would have been seen,” though he opined that it would not have been “very far.” He also testified that he had no way of knowing what Martin Amestoy was doing “10, 20, [or] 50 feet prior to the barricades.”

Considering the above testimony, Nancy Amestoy presented no evidence that SMMA had actual knowledge that the barricades were not apparent to park users when they were open and obvious,21 as overwhelmingly [**115] demonstrated by the foregoing testimony and photographic evidence.22 Indeed, as previously noted, there is no evidence [*473] that SMMA officials knew that the barricades were not apparent.23 Although Nancy Amestoy claims that SMMA stationed a major at the barricades to provide warnings to approaching motorists and bicyclists and that this officer had actual knowledge of the need to provide such warnings, there is no evidence to substantiate these assertions. Instead, the major testified that the objective of his post was to “turn the cars around, bicyclists around.” Additionally, the SMMA captain testified that the purpose of the major’s post was “to block the road, to keep cars from going down into that area where the people would be crossing” and “protect the walkers,”24 not to “protect [***14] bicyclists and cars.” And when further asked if there was “any interest in protecting the bicyclists or the vehicles from entering that area,” the captain responded that “[o]ur objective is to protect everybody in the park.” But this diplomatic answer is a far cry from testimony that would create a genuine issue of material fact as to whether SMMA officials had actual knowledge that the barricades themselves were not apparent–or open and obvious–to park users.

21 Cf. Turkett v. Cent. of Ga. Ry. Co., 117 Ga. App. 617, 617 (161 SE2d 362) (1968) (holding that court erred in dismissing petition alleging negligence when plaintiff collided with warning device placed in roadway by defendant while traveling in the dark, in the rain, and under circumstances of poor visibility; and obstruction was unlighted, obscured from plaintiff’s vision by its placement, and could not be seen until within 10 feet); Rogers v. Johnson, 94 Ga. App. 666, 666 (syllabus), 677 (1), 678 (3) (96 SE2d 285) (1956) (sustaining verdict for plaintiff when decedent was traveling roadway at night in car that collided with defendant’s vehicle, which was hauling house-trailer, nearly blocking the entire roadway after making a lefthand turn); Trammell v. Matthews, 84 Ga. App. 332, 338-39 (1) (66 SE2d 183) (1951) (holding that there was a question for the jury as to negligence when plaintiff alleged, inter alia, “that had the defendant placed proper warnings at the [***15] point where the detour went around the place where the bridge was out, the driver of the car … would not have passed the detour and gone through the partial road block and then into the place where the bridge was out,” and when it appeared from the plaintiff’s petition “that the way ahead of the driver of this car was not clear, that it was yet dark, and the road was not straight as one approached this partial road block from the [s]outh; that the detour was the same color as the paved road; [and] that the partial road block was not sufficient and adequate to prevent one from assuming that the road could be used”).

22 See Metro. Atlanta Rapid Transit Auth. v. Fife, 220 Ga. App. 298, 299, 300 (1) (469 SE2d 420) (1996) (noting that photographic evidence showed that allegedly dangerous condition of drainage culvert was “plainly visible to anyone standing at the curb,” and holding that condition was open and obvious); Warren, 183 Ga. App. at 868 (1) (“Photographs of the stream illustrate that even a first time visitor to the stream would perceive that the stream’s bed was or at least was likely to be rocky. … The rocky condition of the terrain in and about the stream was open and obvious.”); see also Engleson v. Little Falls Area Chamber of Commerce, No. Civ. 101-102, 2002 U.S. Dist. LEXIS 23093, 2002 WL 31689432, at *3 (3) (D. Minn. 2002) (noting, in case involving a plaintiff who tripped over an orange traffic cone, that “[t]he test for obviousness is an [***16] objective test that examines whether the danger was in fact visible, rather than whether the injured party actually saw the danger,” and concluding that not only were traffic cones obvious but that defendants “could not have anticipated harm from the cones because traffic cones are, themselves, warning markers”).

23 See Ray, 296 Ga. App. at 702 (1) (“The … third prong of this test was not met, because no evidence was presented that appellees had actual knowledge of a condition that was not apparent to persons using the property.”); Edmondson, 205 Ga. App. at 663 (“[The third] prong requires plaintiffs to show that defendants actually knew that the dangerous condition of the merry-go-round was not apparent to those using the playground.”).

24 (Emphasis supplied.)

Furthermore, even if we were to assume that Martin Amestoy could not see the barricades from his position and speed on his bicycle or due to the sun’s location at the exact moment of his accident on the morning in question, [HN10] whether a dangerous condition is open and obvious depends on the objective knowledge of a reasonable person, not on the plaintiff’s subjective knowledge.25

25 See Morris v. Clark Equip. Co., 904 FSupp. 1379, 1383 (II) (B) (M.D. Ga. 1995) (“In determining whether a danger was open and obvious to the injured party, the court should [***17] use an objective point of view, as opposed to subjective, since the user’s perceptions are irrelevant.”); see also Weatherby v. Honda Motor Co., 195 Ga. App. 169, 171 (393 SE2d 64) (1990) (“In determining, under the ‘open and obvious rule,’ whether the peril from which an injury results is latent or patent, the decision is made on the basis of an objective view … , and the subjective perceptions of the user or injured party are irrelevant.”), overruled on other grounds by Ogletree v. Navistar Intern. Transp. Corp., 269 Ga. 443, 443-44 (500 SE2d 570) (1998) (holding that “open and obvious danger” rule is not applicable in cases of alleged design defect). See generally 62A Am. Jur. 2d Premises Liability § 713 (2016) [HN11] (“Whether a condition is open and obvious, for premises liability purposes, depends on the objective knowledge of a reasonable person, not the plaintiff’s subjective knowledge. The test for what constitutes an ‘obvious’ danger is an objective test: the question is not whether the injured party actually saw the danger, but whether it was in fact visible.” (footnotes omitted)).

[*474] [**116] In light of the foregoing, we must reverse the trial court’s denial of SMMA’s motion for summary judgment.26

26 See Nash, 220 Ga. App. at 119 (1) (reversing denial of motion for summary judgment when, inter alia, “even assuming for the sake of argument that the unfinished bleachers presented a dangerous condition, there is no [***18] evidence that the [defendant] had any knowledge that this condition was not apparent to people using the property”).

Judgment reversed. Phipps, P. J., and Peterson, J., concur.


This is a hard case–hard not in the sense that it is legally difficult or tough to crack, but in the sense that it requires us to deny relief to a plaintiff for whom we have considerable sympathy.

We do what we must, for ‘it is the duty of all courts of justice to take care, for the general good of the community, that hard cases do not make bad law. 

Roy v. The State of Rhode Island et al., 139 A.3d 480; 2016 R.I. LEXIS 88

State: Rhode Island, Supreme Court of Rhode Island

Plaintiff: Dawn K. Roy, in her capacity as the administratrix of the estate of Brett A. Roy, et al.

Defendant: Rhode Island Department of Environmental Management (DEM), and two individuals in their official capacities as DEM employees 

Plaintiff Claims: 

Defendant Defenses: Open and Obvious and Recreational Use Statute 

Holding: for the Defendant 

Year: 2016 

Summary

The title is a quote from another case and states perfectly the situation most judges face when looking at a case. 

In this one, a man dove into a lake at a State Park in Rhode Island. He broke his neck and became a quadriplegic. The Rhode Island Supreme Court dismissed his claims because the assumed the risk and the Rhode Island Recreational Use Statute prevented his claims. 

Facts 

The state owned the land in question and ran it as a state park. There was a man-made pond in the park that was “treated much like a swimming pool.” Because of changes to the pond, the decision was made to close the pond and now allow swimming. No swimming signs were posted, and no lifeguards were on duty. Other parks of the park were still open, including the bathhouses.

Rhode Island did not allow the operation of a body of water on a swim at your own risk basis. 

The plaintiff was a 29-year-old  husband and father of two. He went to the park with a friend. While at the park he ran and dove into the water breaking his neck and becoming a paraplegic. 

The plaintiff by and through his wife, as Administratrix of the estate of the plaintiff used the state and various agencies for his injuries. The case when to trial and the jury returned a verdict for the defendants. The plaintiff filed a motion for a new trial, which was granted and the defendant filed this appeal to the Rhode Island Supreme Court. 

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

The state based its appeal on the Rhode Island Recreational Use Statute, and the state owed no duty for an open and obvious natural condition. 

The court first looked at the Rhode Island Recreational Use Statute. The statute provided immunity to landowners and to state and municipalities. The limitation was not absolute. A landowner could be liable if the plaintiff could prove “…[f]or
the willful or malicious failure to guard or warn against a dangerous condition, use, structure, or activity after   discovering the user’s peril…
” 

The state argued nothing it did established proof of willful or malicious failure to warn. The court could not find any evidence to support the plaintiff’s claims. On top of that, the best defense was provided by the plaintiff when he admitted
he knew about the dangers of diving into shallow water, and that he had not checked the depth of the water. Finally, he admitted he was probably irresponsible. 

The court then looked at the open and obvious danger defense. Here again, the plaintiff failed.  

This Court held that the defendants had not owed any duty of care to the plaintiff in that case in part because “requiring citizens to place warnings against[–]and barriers preventing persons from[–]diving into shallow water would provide little disincentive to individuals * * *. As a practical matter, the danger of diving into shallow water is one of common knowledge, and one [the plaintiff] admit he was aware of.” 

The court concluded. 

Because it is our considered opinion that the state bore no liability for Roy’s injuries–either because diving is an open and obvious danger or because it was protected under the Recreational Use Statute–we conclude that the trial justice erroneously denied its motion for judgment as a matter of law. 

So Now What? 

To many this case might suck, sending this young man to live a life without the financial support he may need. However, as the quote in the beginning said, the law is the law. When you undertake to engage in a sport or activity, you assume
the risks of those activities. 

More importantly when recreating on land for free, the landowner owes no duty to keep you safe from yourself. If not, recreation would only be on federal lands where the chance of proving a claim is negligible. State, City and County Parks and Open Spaces would all close because they could not afford the insurance needed to keep them open.

 What do you think? Leave a comment.

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Roy v. The State of Rhode Island et al., 139 A.3d 480; 2016 R.I. LEXIS 88

Roy v. The State of Rhode Island et al., 139 A.3d 480; 2016 R.I. LEXIS 88

Dawn K. Roy, in her capacity as the administratrix of the estate of Brett A. Roy, et al.1 v. The State of Rhode Island et al.

1 The original plaintiff, Brett A. Roy, passed away while the instant appeal was pending. An order substituting “Dawn K. Roy, the  administratrix of the estate of Brett A. Roy” as a party in this case entered on April 15, 2016. See Rule 25(a) of the Superior Court Rules of Civil Procedure.

No. 2013-213-Appeal. No. 2014-39-Appeal.

SUPREME COURT OF RHODE ISLAND

139 A.3d 480; 2016 R.I. LEXIS 88

June 23, 2016, Filed

PRIOR HISTORY: [**1] Providence County Superior Court. (PC 09-2874). Associate Justice Susan E. McGuirl.

Roy v. State, 2013 R.I. Super. LEXIS 54 (2013)

CASE SUMMARY:

COUNSEL: For Plaintiffs: Patrick C. Barry, Esq., Douglas E. Chabot, Esq.

For State: Rebecca T. Partington, Department of the Attorney General; Adam J. Sholes, Department of the Attorney General.

JUDGES: Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.

OPINION BY: Paul A. Suttell

OPINION

[*482] Chief Justice Suttell, for the Court. A wise jurist once wrote:

“This is a hard case–hard not in the sense that it is legally difficult or tough to crack, but in the sense that it requires us * * * to deny relief to a plaintiff for whom we have considerable sympathy. We do what we must, for ‘it is the duty of all courts of justice to take care, for the general good of the community, that hard cases do not make bad law.'” Burnham v. Guardian Life Insurance Co. of America, 873 F.2d 486, 487 (1st Cir. 1989) (Selya, J.) (quoting United States v. Clark, 96 U.S. 37, 49, 24 L. Ed. 696, 13 Ct. Cl. 560 (1877) (Harlan, J., dissenting)).

This is indeed such a hard case. Tragically, on July 10, 2008, twenty-nine-year-old Brett A. Roy broke his neck when diving into the pond at World War II Veterans Memorial Park in Woonsocket, resulting in his paralysis from the neck down. Roy’s injuries were vast and undeniable. Roy and his wife, Dawn K. Roy (plaintiffs), individually and as the parents of their two children, [**2] filed this action against the state, the Rhode Island Department of Environmental Management (DEM), and two individuals in their official capacities as DEM employees (collectively, the state), alleging several counts of negligence and premises liability. After a multi-week trial and lengthy deliberations, a jury returned a verdict for the state, finding that the state had not “fail[ed] to guard or warn against a dangerous condition, use, structure or activity” or against a “non-obvious, latent dangerous condition” at the pond. Subsequently, both parties filed renewed motions for judgment as a matter of law, which the trial justice denied. However, the plaintiffs also filed a motion for a new trial, which was granted. Thereafter, the state brought the instant appeal arguing that the trial justice erred in granting the plaintiffs’ motion for a new trial, and that, as a matter of law, the state owed no duty to Roy. The plaintiffs filed a cross-appeal arguing that their motion for judgment as a matter of law should have been granted and that the trial justice erred in denying their motion for additur or alternatively their motion for a new trial on damages only. For the reasons set forth herein, [**3] we vacate the judgment of the Superior Court.

I

Facts and Travel

A

World War II Veterans Memorial Park and Pond

In July 2008, the pond at World War II Veterans Memorial Park in Woonsocket [*483] was one of several bodies of water operated by the state as a recreational facility. At trial several state workers testified to the condition and maintenance of the park and pond.

The director of DEM at the time of the incident, W. Michael Sullivan, testified that the man-made pond was “filled mechanically” and “treated much like a swimming pool.” Sullivan testified that, in June 2008, he made the decision to fill the pond, and he appeared at a press conference where he announced his decision.2 Sullivan stated that, in July 2008, there were “no swimming” signs posted, but DEM “expected that there would be people * * * using the park.” Sullivan explained that facilities such as the bathhouses were open, but he stated that he “did not ever consider the beach to be open.” Sullivan agreed that it was prohibited under DEM rules to operate the pond on a “swim-at-your-own-risk” basis, and he explained that, “if there were not lifeguards present at a swimming facility, that the swimming facility was closed.” Sullivan [**4] explained that, in July 2008, staff on-site at the park had been directed “to tell people that the beach — that the water was closed to swimming, to point to signage and refer them to that, but it was not expected that they would stand there and order people out [of the water] * * *.”

2 Sullivan had explained that, in February 2008, World War II Veterans Memorial Park had been “slated for closure” in the budget presented to the Legislature that year. However, at the end of June, after local officials expressed concern, he made the decision as the Director of DEM to fill the pond.

The Associate Director of Natural Resources for DEM, Larry Mouradjian, also testified at trial. He described the pond, explaining that there was a designated lap pool, a swim area, and a diving platform. He testified that he had seen the pond with and without water, and, based on his opinion, diving near the wall into the lap pool would be dangerous because it was too shallow. Mouradjian testified that the pond was typically not filled “until such time as we were able to fully staff the * * * swim area and invite the public to swim at the pond * * *.” Mouradjian stated that he thought the decision to fill the [**5] pond was untimely “[b]ecause the things normally done to prepare the pond to be open to the public had not been done * * *.” He testified that he had spoken to Sullivan and recommended that the pond be drained or left empty until DEM “beg[a]n to acquire the resources necessary.”

The DEM Chief of the Rhode Island Division of Parks and Recreation, Robert Paquette, and the Deputy Chief, John Faltus, also testified at trial. Paquette confirmed that Mouradjian was hesitant to open the pond and that Mouradjian told him that “we should really look into this.” However, Paquette testified that “[Sullivan] was ordering [him] to open up the facility.” Paquette also testified that he had never been told that “there was ever a problem with shallow water [along the wall of the pond].” Faltus testified that he was never “officially informed” that people were diving at the pond, but he had “heard hearsay that there’s possible diving activity after hours.” Faltus stated that generally they did not “allow diving at any [state] swimming areas.” However, he also admitted that “[p]eople [were] allowed to possibly do some shallow entry dives,” explaining that whether diving was allowed “[d]epends on how you define ‘dive.'”

William Mitchell [**6] Jr., the Regional Park Manager for DEM in 2008, testified that there was no “system that was in place to warn people of the depth of the water.” However, he stated that “if a patron * * * [*484] ask[ed] an employee * * * they would advise them as to the depth of the water, [and] if they asked about diving, [they] would tell them the rules and regulations * * *.” Mitchell agreed that Roy’s injury was “[g]enerally” the type of thing that he could foresee and he was concerned that it was the kind of injury that would happen when he was told to fill the pond before lifeguards had been hired.

Peter Lambert, a DEM caretaker supervisor who was employed at World War II Veterans Memorial Park from 1990 to 2008, testified at trial extensively about the physical characteristics and operation of the park and pond. He explained that, as the caretaker supervisor, he was the “acting park manager,” testifying that he “handled pretty much everything that had to do with the park itself: scheduling the staff, supervising the lifeguards, interviewing park rangers, interviewing seasonal people, assigning various work to people.” Essentially he either directly worked on or helped supervise everything that needed to be done at the [**7] park.

Lambert described the park as “16 acres * * * in the center of * * * Woonsocket [with] a man made [sic] pond, * * * two tennis courts, a playground area, horseshoe pits, * * * [an] Olympic pool area, * * * and the beach area * * *.” Lambert described the water depth near the wall where the Olympic pool met the beach area as being “pretty consistent over the years.” He testified that, when the pond was drained, he would try to “smooth the bottom” of it. Lambert explained that the pond “wouldn’t be perfectly level like a pool,” but testified that he “would try to eliminate any erosion, any heels, any high spots.” He testified that he was unable to do “any preparatory work to the bottom” of the pond in 2008 because he had been “informed that the park was closing and the beach wouldn’t be opened that year, and [his] job was being eliminated.” However, Lambert also explained that he did not rake the pond every year because “there were years when there was very little shifting on the bottom.” Subsequently, Lambert testified about the diving policies at the pond. He stated that diving had “never [been] allowed.” However, he admitted to seeing “people periodically dive * * * off of [the] [**8] wall on the pool area, [but] not during hours that [the pond was] in operation.”

B

The Events of July 10, 2008

Kenneth Henderson, a seasonal laborer for DEM who worked as a groundskeeper at the park in 2008, testified at trial that he was working on July 10, 2008. Henderson stated that he saw “about half a dozen” people swimming in the pond that day but did not tell them that swimming was prohibited because, in his words, “[he] had no authority.”

Laura Oliver and Carol Gear had also been at the park on July 10, 2008, and testified at trial. Oliver testified that on July 10 there were no lifeguards, lifeguard chairs, or buoy lines in the pond, and the fountain was off. Oliver said that she allowed her children to go swimming despite the “no swimming” signs “because there [had been] a write-up in the paper, and nobody told [them] different[ly].” She added that there were often “no swimming” signs in place, even when lifeguards were present and watching the swimmers. However, Oliver testified that a DEM employee, who she later learned was a groundskeeper, had told her children not to jump in the water. Oliver explained that she saw people jumping and “do[ing] all kinds of stuff” off the diving platform on July [**9] 10. However, she knew from experience that diving was not allowed in the pond because in previous years if someone [*485] dove into the water, then “lifeguards would be on top of it. If they kept doing it, [the lifeguards] would tell them they had to leave.” She added that she never saw anyone get hurt while diving prior to July 10. Oliver described Roy’s dive as “a belly flop kind of dive; not a complete dive.”

Gear testified that she had been to the pond to swim “[t]hree times” before July 10, 2008, and had seen people dive, but had never seen anyone injured from diving before Roy suffered his injury. Gear described Roy’s actions that she witnessed on July 10, stating: “He threw something on the ground, and [ran], like you run when you bowl, and then he just dove in.” She labeled Roy’s dive as a “[r]egular kind of dive.” She clarified that she would call it “a shallow dive.” She explained that “[i]t was more like he * * * just * * * put his head down and kind of went in. It wasn’t like a real dive like on a diving board.”

Hope Braybon, who accompanied Roy to the pond on July 10, also testified to the events of the day. Braybon stated that she watched Roy “jog” from the car in the parking lot and “d[i]ve in.” She testified [**10] that, as Roy was diving, she “was telling him not to dive over there * * * because it was shallow water.”

Roy was unable to testify at trial but his deposition was read into the record. Roy was six feet tall and twenty-nine years old at the time of the incident. Roy testified that on July 10 he had dropped Braybon, her daughter, and his children at the park and “they * * * walked towards the beach.” He recalled seeing “20 to 30 people, small children, adults, adolescent children in the middle of the pond” swimming, which indicated to him that the park was open. He testified that he “never saw a sign that said ‘[n]o [s]wimming.'” Roy further testified that, when he arrived at the park, he “walked over towards the corner [of the pond], * * * [a]nd * * * wasn’t going to jump in,” but, he described the day as “hot, * * * very hot. So, [he] figured * * * [he would] jump in.” He stated that he looked at the water and “[i]t looked deep enough.” He described the water as “murky” and said that he “definitely couldn’t see the bottom.” He explained that “if the water was too shallow, [he would] be able to see it.” Before jumping in, Roy returned to his car to put his things away and then he “walked down to the end[,] [**11] * * * dove in the water[,] and [he] broke [his] neck.” Roy described his dive as a “shallow dive, just like a normal, flat dive,” meaning, “the only parts that [he] would want to hit the water would be the * * * tops of [his] hand and [his] belly.” Roy testified that around July 2007 he dove in the same spot, and “[n]othing was ever said to [him].” Roy admitted that he knew there was soil erosion in the pond, and, consequently, that soil had been added to the pond in the past. Roy stated that “the way that [he] check[ed] the depth of the water * * * was probably irresponsible * * *.”

C

The Jury Verdict and Posttrial Motions

After the close of evidence, both parties filed motions for judgment as a matter of law pursuant to Rule 50 of the Superior Court Rules of Civil Procedure, and the trial justice denied both motions. Subsequently, the jury was charged on May 25, 2011. During the course of deliberations, the jury exchanged over fifty notes with the trial justice. On the morning of the third day of deliberations, the trial justice addressed the jury and asked the jurors to keep deliberating because she was “really confident that the eight [jurors were] going to be able to * * * reach a decision that is fair and just for everyone.”

[*486] On the fourth day of deliberations, [**12] the jury asked the court to “clarify if [six] jurors are for one party and [two] jurors are for another[,] [d]o the questions have to be answered in favor of the way the six jurors feel and the [other two jurors would] not be able to express their own feelings[?]” The trial justice responded that she was “not exactly sure what [they] [were] asking but the jury’s verdict must be unanimous with all [eight] [jurors] agreeing.” Later that day, the trial justice held a chambers conference at which she suggested to counsel that, in light of the jury’s note, the jury might be split six to two.

During the fifth day of deliberations, the jury asked the trial justice to reinstruct them that they needed to follow the instructions of law and not their emotions. After a series of conferences with juror No. 109 and the jury foreperson, individually, the trial justice excused juror No. 109. At approximately 3:50 p.m. that day, the jury sent a note to the trial justice that it could not come to a unanimous agreement. Approximately ten minutes later the trial justice responded: “Is there anything we can do to assist you?” The jury responded that “nothing else will make a difference” and indicated a six-to-one [**13] split. Thereafter, the trial justice released the jurors for the day and asked counsel to think of options and to determine from their respective clients whether they would accept a split verdict.

The following day–day six of deliberations–both parties agreed to accept a six-to-one split decision if the jury was unable to reach a unanimous verdict. The parties expressed that they “understood at the time that the jury would be sent to deliberate” and that if the jury “inform[ed] the [c]ourt that it could not reach a unanimous verdict, [the trial justice] would then disclose [to the jury] that the parties [had] agreed to accept a [six] to [one] split decision * * *.” Subsequently, the jury exchanged additional notes with the trial justice and returned for additional instructions on the Recreational Use Statute and the issue of liability, included as questions 1 and 2 on the verdict form. Thereafter, the jury indicated that it had reached a verdict.

The jury reached a unanimous verdict and found that the state had not “willfully or maliciously failed to guard or warn against a dangerous condition, use, structure or activity at the pond * * *” and therefore was not liable under question 1. However, the jury [**14] found that the state was liable under question 2 for “willfully or maliciously fail[ing] to guard against a non-obvious, latent dangerous condition, knowing that there existed a strong likelihood that a user of the swimming pond would suffer serious injury or death[.]” The jury rejected the assumption-of-the-risk defense and found that both parties were negligent and assigned a 50/50 split with “zero” damages. The trial justice then called counsel to sidebar where plaintiffs argued that the jurors were not following the instructions because they found in favor of them but awarded no damages; the state disagreed. The trial justice instructed the jury that they were required to award damages. At that time, the state moved for a mistrial “based on the inconsistencies of the answers to the questions on the verdict sheet”; plaintiffs objected, and the trial justice denied the motion. The jury then sent a note explaining that they had “reached a unanimous verdict [because] no money was awarded.” They explained that if they had to award damages, “part of [the] jury [would] have one answer [and] part [would] have another. In other words, [they would] have to begin again.” The trial justice clarified [**15] with the jury that they were “referring to the [six-to-one] split/vote” and then released the jury for the day.

[*487] After the jury was sent home, the trial justice held a chambers conference with counsel. The parties discussed four potential options to consider: (1) a mistrial; (2) accept a six-to-one verdict; (3) accept half of the verdict; or (4) allow the verdict to stand. On the seventh day of deliberations, plaintiffs made a motion for additur or, in the alternative, for a new trial on the issue of damages. The trial justice denied plaintiffs’ motion and offered the parties a choice of accepting a split verdict or a mistrial. Both parties agreed to accept a six-to-one split verdict. The trial justice notified the jury that the parties would accept a six-to-one verdict. The jury returned the verdict and answered “no” to questions 1 and 2–finding no liability on behalf of the state, and judgment entered.

Following the jury verdict, both parties made renewed motions for judgment as a matter of law. In support of its motion, the state argued that plaintiffs failed to establish the state’s liability under the Recreational Use Statute and that, as a matter of law, Roy’s conduct was so “highly [**16] dangerous” that “no duty was owed to him.” The plaintiffs argued that the state’s witnesses admitted sufficient facts at trial to establish the state’s liability as a matter of law under the Recreational Use Statute. Additionally, plaintiffs moved for a new trial on damages, or, in the alternative, a new trial on all the issues. The trial justice issued a written decision on March 26, 2013, denying both parties’ motions for judgment as a matter of law, and granting plaintiffs’ motion for a new trial on all the issues. The state timely appealed this decision, and plaintiffs filed a cross-appeal.

II

Parties’ Arguments on Appeal

On appeal, the state argues that the trial justice erred in refusing to apply the decisions in Banks v. Bowen’s Landing Corp., 522 A.2d 1222 (R.I. 1987) and Bucki v. Hawkins, 914 A.2d 491 (R.I. 2007), which, the state contends, “stand for the proposition that the [s]tate owed no duty to Roy to protect him from an open and obvious natural condition * * *.” The state maintains that, “under the proper application of the Recreational Use Statute, the evidence fails to establish that the state willfully and/or maliciously failed to warn against a dangerous condition.” The state also argues that “Roy assumed the risk of injury by diving into murky water without first checking [**17] its depth” and that plaintiffs failed to prove the element of causation. Furthermore, the state contends that it is shielded from liability under the theory of discretionary immunity. The state also asserts that “the trial justice misconstrued material evidence and committed significant errors of law in granting plaintiffs’ motion for a new trial.” However, the state adds, if the matter is remanded for a new trial, “the statutory cap on damages should apply.”

In response, plaintiffs argue that the trial justice properly granted their motion for a new trial. The plaintiffs aver that they proved liability under the Recreational Use Statute and that the “open and obvious danger” rule articulated in Bucki, 914 A.2d at 496, is inapplicable here due to distinguishable facts. The plaintiffs maintain that Roy could not have “assumed the risk” under these facts as a matter of law and that plaintiffs proved proximate causation. Furthermore, plaintiffs contend that the trial justice and two motion justices properly applied the law and limited the state’s defenses with respect to governmental immunity and the damages cap. On cross-appeal, plaintiffs argue that the trial justice incorrectly denied their motions for additur, [**18] a new trial on the issue [*488] of damages only, and judgment as a matter of law. Additionally, plaintiffs argue that a new trial was warranted based on other legal errors made by the trial justice and that the second jury verdict was “the result of bias, prejudice, or passion.”

Because we conclude that the state owed no duty to Roy, we shall address only the state’s renewed motion for judgment as a matter of law.

III

Judgment as a Matter of Law

A

Standard of Review

[HN1] “In reviewing a trial justice’s decision on a motion for judgment as a matter of law, this Court is bound to follow the same rules and legal standards as govern the trial justice.” Hough v. McKiernan, 108 A.3d 1030, 1035 (R.I. 2015) (quoting Perry v. Alessi, 890 A.2d 463, 467 (R.I. 2006)). “The trial justice, and consequently this Court, must examine ‘the evidence in the light most favorable to the nonmoving party, without weighing the evidence or evaluating the credibility of witnesses, and draw[] from the record all reasonable inferences that support the position of the nonmoving party.'” Id. (quoting Perry, 890 A.2d at 467). Thus, a trial justice should enter judgment as a matter of law “when the evidence permits only one legitimate conclusion in regard to the outcome.” Id. (quoting Long v. Atlantic PBS, Inc., 681 A.2d 249, 252 (R.I. 1996)).

B

Discussion

[HN2] The Rhode Island Recreational Use Statute, G.L. 1956 [**19] chapter 6 of title 32, limits the liability of landowners, declaring that one

“who either directly or indirectly invites or permits without charge any person to use that property for recreational purposes does not thereby:

“(1) Extend any assurance that the premises are safe for any purpose;

“(2) Confer upon that person the legal status of an invitee or licensee to whom a duty of care is owed; nor

“(3) Assume responsibility for or incur liability for any injury to any person or property caused by an act of omission of that person.” Section 32-6-3.

[HN3] The purpose of this statute “is to encourage owners of land to make land and water areas available to the public for recreational purposes by limiting their liability to persons entering thereon for those purposes.” Section 32-6-1. In order to achieve this, “the [Recreational Use Statute] modifies the common law by treating users of public and private recreational properties as trespassers, thus greatly reducing the duty of care that owners owe to recreational users.” Symonds v. City of Pawtucket, 126 A.3d 421, 424 (R.I. 2015). As we have noted, “it is clear from the unambiguous language of the 1996 amendment [to the Recreational Use Statute] that the [L]egislature intended to include the state and municipalities among owners entitled to immunity [**20] under the statute.” Id. (quoting Pereira v. Fitzgerald, 21 A.3d 369, 373 (R.I. 2011)).3

3 In 1996, the General Assembly amended the definition of “owner” in G.L. 1956 § 32-6-2(3) to include the state and municipalities. P.L. 1996, ch. 234, § 1.

[HN4] Although the Recreational Use Statute limits liability, this limitation is not absolute. Section 32-6-5 provides, in relevant part: “(a) Nothing in this chapter limits in any way any liability which, but for this chapter, otherwise exists: (1) [f]or the willful or malicious failure to guard or [*489] warn against a dangerous condition, use, structure, or activity after discovering the user’s peril * * *.” “Thus, the Legislature declared that all people who use this state’s public recreational resources are classified as trespassers to whom no duty of care is owed, save to refrain from willful or malicious conduct as defined in the [Recreational Use Statute].” Berman v. Sitrin, 991 A.2d 1038, 1044 (R.I. 2010).

On appeal, the state argues that the evidence presented at trial did not establish that the state willfully and/or maliciously failed to warn against a dangerous condition. Specifically, the state argues that “there was no evidence of a substantial number of injuries flowing from a known dangerous condition”; that “the state did not fail to guard or warn against a dangerous condition, use, [**21] structure, or activity”; and that “no witness made testimonial admissions sufficient to extinguish protection under the Recreational Use Statute.” Conversely, plaintiffs argue that they proved liability under the Recreational Use Statute because the evidence supported a finding that the state “breached the duty to refrain from willful and malicious failures to guard and warn against known latent conditions.” In support of this argument, plaintiffs rely on Berman.

In Berman, 991 A.2d at 1042, the plaintiff was walking on the Newport Cliff Walk when the ground “gave way,” causing the plaintiff to suffer injuries that rendered him a quadriplegic. This Court specifically noted that this was “not * * * a case in which a visitor came too close to the edge of a cliff and fell off, as tragic as that would be.” Id. at 1049. Rather, “the events leading to [the plaintiff’s] tragic injury were caused by latent defects in the structure of the Cliff Walk that [were] not obvious to the occasional visitor.” Id. This Court explained that “the record before [it was] replete with evidence demonstrating that * * * the city knew that the forces of natural erosion were taking a toll on the Cliff Walk.” Id. at 1050. Thus, this Court concluded that “because [**22] of the multiple incidents of death and grievous injury * * * the city [could] not successfully defend [the plaintiff’s] claim based on an assertion that it had no specific knowledge of [the plaintiff] or any peril confronting him.” Id. at 1051. Consequently, this Court held that “the immunity provided by the [Recreational Use Statute] [was] not available to defendant City of Newport, in the context of the Cliff Walk” because a “fact-finder reasonably could find that * * * the city voluntarily and intentionally failed to guard against the dangerous condition, knowing that there existed a strong likelihood that a visitor to the Cliff Walk would suffer serious injury or death.” Id. at 1052, 1053.

The plaintiffs argue that this case is comparable to Berman because the “record is replete with evidence of DEM’s admitted knowledge of numerous unique dangerous conditions, including shallow water in areas where users had been known to dive from the park’s structures, and the historic presence of the sandbar in the same (normally deeper) area.” The plaintiffs maintain that the “shallow water and dangers of diving at this particular facility were not obvious to users * * * yet were in fact known to DEM.”

In the case at bar, [**23] although the state admitted knowledge of the unique features of the pond, Roy also admitted that he was aware of the danger of making a dive into shallow water and that “the way that [he] check[ed] the depth of the water * * * was probably irresponsible * * *.” He confirmed that he knew the soil in the pond was eroding and, consequently, that soil was added to the pond. We would note that, examining the evidence in the light most favorable to the plaintiffs as we [*490] must, the actions of the defendants are a far cry from the egregious conduct attributed to the City of Newport in Berman. There, we held that “[i]t is because of the multiple incidents of death and grievous injury that we conclude that the city may not successfully defend this claim based on an assertion that it had no specific knowledge of [the plaintiff] or any peril confronting him.” Berman, 991 A.2d at 1051. Here, there is only one indication in the record of a relatively minor injury reported several days before Roy’s catastrophic injuries. Therefore, we are of the opinion that, under these circumstances, this case is distinguishable from Berman. There is no evidence to support a finding that the state “willful[ly] or malicious[ly] fail[ed] to guard or warn against a dangerous condition, [**24] use, structure, or activity after discovering [a] user’s peril * * *.” See § 32-6-5(a)(1). Thus, the state’s motion for judgment as a matter of law should have been granted.

Moreover, even if the Recreational Use Statute did not apply, this Court has held that [HN5] the danger of diving in and of itself is an “open and obvious” danger, Bucki, 914 A.2d at 496, one of “common knowledge,” Banks, 522 A.2d at 1225, such that a landowner does not owe a duty of care to warn individuals who enter the premises. In Banks, 522 A.2d at 1224, the plaintiff filed a negligence claim for injuries he suffered after diving off a railing on the defendant’s property into the Newport Harbor. This Court held that the defendants had not owed any duty of care to the plaintiff in that case in part because “requiring citizens to place warnings against[–]and barriers preventing persons from[–]diving into shallow water would provide little disincentive to individuals * * *. As a practical matter, the danger of diving into shallow water is one of common knowledge, and one [the plaintiff] admit he was aware of.” Id. at 1225. Similarly, in Bucki, 914 A.2d at 493, the plaintiff filed a negligence claim for injuries he sustained after diving into a lake while he was a guest at one defendant’s waterfront property. This Court concluded that [**25] the plaintiff’s harm was foreseeable but again held that the defendants did not have a duty to warn of the dangers of diving. Id. at 496-97. This Court stated that:

“It is only reasonable for a diver, who cannot ascertain the water’s depth by looking, to further inspect the area before diving into dark water. The danger of diving into shallow water was open and obvious to a twenty-four-year-old man, regardless of whether a sign was erected alerting him to the danger.” Id. at 496.

Thus, this Court held that “as a matter of law, [the] plaintiff must be held to have had knowledge and an appreciation of this risk [because][,] [u]ltimately, it was [the] plaintiff’s own behavior that caused his injuries.” Id.

We also note that other courts have reached similar conclusions. For example, the Maryland Court of Appeals commented that:

“Bodies of water like the stream involved in this case have historically and consistently been afforded distinctive treatment in the law relating to landowners’ liability. The necessity, or at least desirability, of maintaining such bodies of water, coupled with known inherent dangers and the difficulty of effectively protecting against those dangers, have led courts across the country to pronounce [**26] water an ‘open and obvious danger,’ for which no warning or special precaution is ordinarily needed.” Casper v. Charles F. Smith & Son, Inc., 316 Md. 573, 560 A.2d 1130, 1134-35 (Md. 1989).

[*491] In a case affirming the grant of summary judgment in favor of the Chicago Park District against swimmers who were injured when they dove into Lake Michigan from concrete seawalls, Bucheleres v. Chicago Park District, 171 Ill. 2d 435, 665 N.E.2d 826, 827, 828, 839, 216 Ill. Dec. 568 (Ill. 1996), the Illinois Supreme Court pronounced:

“In cases involving obvious and common conditions, such as fire, height, and bodies of water, the law generally assumes that persons who encounter these conditions will take care to avoid any danger inherent in such condition. The open and obvious nature of the condition itself gives caution and therefore the risk of harm is considered slight; people are expected to appreciate and avoid obvious risks.” Id. at 832.

The Illinois Supreme Court further reasoned that “bodies of water are ordinarily considered to be open and obvious conditions and thereby carry their own warning of possible danger.” Id. at 835. This is clearly the position adopted by this Court in Bucki, 914 A.2d at 497, where this Court stated that “[w]e are of the opinion that in this case [the] defendant did not owe [the] plaintiff a duty of care, but, rather, that [the] plaintiff voluntarily exposed himself to the perils of an open and obvious danger.” [**27] Because it is our considered opinion that the state bore no liability for Roy’s injuries–either because diving is an open and obvious danger or because it was protected under the Recreational Use Statute–we conclude that the trial justice erroneously denied its motion for judgment as a matter of law.

IV

Conclusion

For the reasons stated herein, we vacate the judgment of the Superior Court and remand the case with instructions to enter judgment in favor of the state. The record shall be returned to the Superior Court.


To prove gross negligence under Washington State law you have to show intentional or reckless misconduct. Assumption of the risk prevents river tuber for suing for his injuries hitting a strainer.

Washington defines assumption of the risk the same way most other courts do. However, the names they sue to describe assumption of the risk are different in some cases and confusing in others.

Here, assumption of the risk stopped claims both for negligence and gross negligence for this tubing case.

Summary

Assumption of the risk is growing again as a defense to different types of claims by plaintiffs. In this case, the plaintiff assumed the risk of his injuries for a tubing accident which barred his negligence claim and his gross negligence claim. The standard of proof needed to prove a claim that cannot be defeated by assumption of the risk in Washington is a much higher level of action on the part of the defendant.

Here the plaintiff failed to plead or allege that level of acts by the defendant.

Washington also uses different names for the types of assumption of the risk that are applied to cases, which can lead to greater confusion.

If you are a defendant, instead of attempting to understand what is or is not assumption of the risk. Spend your time educating your customers, so they know and assume the risk they may be facing.

Pellham, v. Let’s Go Tubing, Inc., et al., 199 Wn. App. 399; 2017 Wash. App. LEXIS 1525

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

Plaintiff: Brian Pellham

Defendant: Let’s Go Tubing, Inc., et al.

Plaintiff Claims: presented sufficient evidence of gross negligence because Let’s Go Tubing chose the excursion lo-cation, knew of the existence of a hazard, and failed to warn Pellham of the hazard. He argues that the rental company’s gross negligence supersedes any release of liability and assumption of the risk contained in the form he signed.

Defendant Defenses: that summary judgment was appropriate because Pellham failed to establish a duty, the liability release disposes of the claim, and Pelham’s evidence does not create [**7] a genuine issue as to any fact material to establishing gross negligence.

Holding: For the Defendant

Year: 2017

Facts

The plaintiff rented an inner tube from the defendant. The rental included delivery to the put in by the defendant. This is commonly described as a livery operation as compared to a pure rental where the renter takes the inner tube and goes wherever.

Upon arrival, the plaintiff signed a release and rented an inner tube. The plaintiff uses releases in his business, although what type of business was never discussed by the court.

The bus driver for the defendant told most of the tubers that upon entry they should push off to the far side of the river to avoid a tree that had fallen into the river immediately downriver but out of sight of the put in.

The plaintiff did not hear this warning. The plaintiff and four friends tied their inner tubes together. The current was swift and they quickly rounded the bend where they saw the tree across the river. The rental company gave each renter a Frisbee to use as a paddle. Everyone used the Frisbee to paddle away from the tree, but the plaintiff hit the tree. Falling into the river the plaintiff broke his ear drum. He went under the tree and upon resurfacing; he struck a large branch which gave him a whiplash.

The plaintiff swam to shore and ended his tubing trip. The plaintiff eventually underwent a neck fusion surgery.

The defendant was legally not allowed to remove the strainer from the river.

The plaintiff sued the defendant. The trial court granted the defendant’s motion for summary judgment, and the plaintiff appealed.

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

Washington has defined four types of assumption of the risk and has identified them slightly differently than most other states.

Washington law and most other states’ jurisprudence recognize four taxonomies of the assumption of risk doctrine: (1) express, (2) implied primary, (3) implied unreasonable, and (4) implied reasonable.

The first two, Express Assumption of the Risk and Implied Assumption of the Risk are still complete bars to a claim of negligence. The second two, Implied Unreasonable and Implied Reasonable have merged into contributory negligence and simply reduce the plaintiff’s damages.

Washington defines the types of assumption of the risk the same way most other states do.

Express assumption of risk arises when a plaintiff explicitly consents to relieve the defendant of a duty owed by the defendant to the plaintiff regarding specific known risks.

Implied primary assumption of risk follows from the plaintiff engaging in risky conduct, from which the law implies consent.

Implied unreasonable assumption of risk, by contrast, focuses not so much on the duty and negligence of the defendant as on the further issue of the objective unreasonableness of the plaintiff’s conduct in assuming the risk.

Implied reasonable assumption of risk is roughly the counterpart to implied unreasonable assumption of risk in that the plaintiff assumed a risk but acted reasonably in doing so.

Washington also names Implied Primary Assumption of the Risk as Inherent Peril Assumption of the Risk.

Inherent peril assumption bars a claim resulting from specific known and appreciated risks impliedly assumed often in advance of any negligence of the defendant. Plaintiff’s consent to relieve the defendant of any duty is implied based on the plaintiff’s decision to engage in an activity that involves those known risks. One who participates in sports impliedly assumes the risks inherent in the sport.

How the plaintiff was injured defines whether or not Inherent Peril Assumption of the Risk applies. The court went on to define the inherent peril assumption of the risk as:

One who engages in sports assumes the risks that are inherent in the sport. To the extent a risk inherent in the sport injures a plaintiff, the defendant has no duty and there is no negligence. A defendant simply does not have a duty to protect a sports participant from dangers that are an inherent and normal part of a sport.

Inherent peril assumption of the risk extends to water sports. One who plays in the water assumes the reasonably foreseeable risks inherent in the activity. Water sports include inner tubing and canoe rentals. Inherent risk applies because “Bodies of water often undergo change, and changing conditions in the water do not alter the assumption of risk. There is no duty to warn of the presence of natural transitory conditions.”

For the plaintiff to assume the risk, three elements must be found.

Inherent peril assumption, like express assumption of risk, demands the presence of three elements. The evidence must show (1) the plaintiff possessed full subjective understanding (2) of the presence and nature of the specific risk and (3) voluntarily chose to encounter the risk.

Washington also requires the plaintiff to understand the risk. “The rule of both express and inherent peril assumptions of risk requires a finding that the plaintiff had full subjective understanding of the presence and nature of the specific risk.”

However, that does not require knowledge of the specific issues that caused the injury, just knowledge that the injury could occur. Meaning, if the injured party knows that trees fall into rivers, would be enough. There is no requirement that the injured plaintiff knew that a tree fell into the river.

…Brian Pellham assumed the risks involved in river tubing, including the fallen tree. Pellham may not have precisely and subjectively known how the combination of a swift current, a bend in the river, and a fallen tree would produce his injury. Nevertheless, he knew of the potential of all factors. He may not have known of the location of any fallen tree in the river, but he knew of the potential of a fallen tree somewhere in the river.

However, even if the plaintiff assumed the risks, a plaintiff cannot assume the risk where the defendant unduly enhanced the risk.

While participants in sports are generally held to have impliedly assumed the risks inherent in the sport, such assumption of risk does not preclude a recovery for negligent acts that unduly enhance such risks.

This difference places a burden on the plaintiff, in what he or she has to prove to win their claim and a burden on the courts to define what is an increase in the level of danger.

Courts have struggled to properly distinguish between inherent peril assumption of risk (implied primary assumption of risk), which bars the plaintiff’s claim, and increased danger assumption of risk (implied unreasonable assumption of risk), which simply reduces the plaintiff’s damages.

However, here any negligence upon the part of the defendant did not increase the risk. The negligence occurred prior to the plaintiff entering the water. The danger was the tree in the river which the defendant could not do anything about.

When he noticed the risk, he lacked time to avoid the hazard. Pellham did not voluntarily proceed after knowing of the alleged negligence of Let’s Go Tubing. Any alleged negligence of Let’s Go Tubing occurred before Pellham entered the river. Therefore, increased danger assumption of risk does not apply.

The plaintiff also argued in this complaint, that the actions of the defendant were grossly negligent. Gross negligence in Washington is defined as failure to exercise slight care.

Gross negligence claims survive when a release has been signed. The issue before the court was whether gross negligence claims can be stopped if the plaintiff assumed the risk.

At the same time, gross negligence claims survive a release against liability. A sporting participant’s assumption of inherent risks effectively acts as a release from liability. Since gross negligence claims survive a release, gross negligence maybe should survive inherent peril assumption of risk.

The court then redefined how gross negligence was going to be reviewed in Washington applying an intentional reckless standard as the level required proving gross negligence when a plaintiff assumes the risk.

We join the other jurisdictions in imposing an intentional and reckless standard, rather than a gross negligence standard, when the plaintiff assumes the risks of inherent perils in a sporting or outdoor activity.

There is a difference between gross negligence and reckless misconduct under Washington’s law.

Gross negligence consists of the failure to exercise slight care. Reckless misconduct denotes a more serious level of misconduct than gross negligence. An actor’s conduct is in “reckless disregard” of the safety of another if he or she intentionally does an act or fails to do an act that it is his or her duty to the other to do, knowing or having reason to know of facts that would lead a reasonable person to realize that the actor’s conduct not only creates an unreasonable risk of bodily harm to the other but also involves a high degree of probability that substantial harm will result to him or her.

Because reckless conduct is a higher burden to meet, assumption of the risk becomes a defense that can beat a gross negligence claim in some situations in Washington. The plaintiff never pleaded reckless conduct on the part of the defendant so the plaintiff’s gross negligence claim was also denied.

Brian Pellham does not allege that Let’s Go Tubing engaged in reckless conduct. No evidence supports a conclusion that the inner tube rental company bus driver purposely omitted a warning to Pellham with knowledge that Pellham would suffer substantial harm.

So Now What?

Understanding the different slight subtlest between the various forms of assumption of the risk is difficult. Comparing them between states does nothing but create a confusing group of definitions that cross one another and at best confuse one another.

Better, set up a system to educate your guests or clients on the risks they may encounter. That time spent educating the guests can pay dividends both in keeping you out of court and keeping your guests happy and coming back.

What do you think? Leave a comment.

Copyright 2017 Recreation Law (720) 334 8529

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Pellham, v. Let’s Go Tubing, Inc., et al., 199 Wn. App. 399; 2017 Wash. App. LEXIS 1525

Pellham, v. Let’s Go Tubing, Inc., et al., 199 Wn. App. 399; 2017 Wash. App. LEXIS 1525

Brian Pellham, Appellant, v. Let’s Go Tubing, Inc., et al., Respondents.

No. 34433-9-III

COURT OF APPEALS OF WASHINGTON, DIVISION THREE

199 Wn. App. 399; 2017 Wash. App. LEXIS 1525

March 21, 2017, Oral Argument

June 27, 2017, Filed

SUMMARY:

WASHINGTON OFFICIAL REPORTS SUMMARY Nature of Action: A participant in an inner tube float on a river sought damages for personal injury incurred when his tube struck a fallen log. The plaintiff sued the company and its owners who rented him the inner tube and who selected the site where participants entered the river, claiming that the defendants owed him a duty to warn about a fallen log in the river that was hidden from but was near the entry site. The plaintiff also claimed that the defendants violated the Consumer Protection Act.

Nature of Action: A participant in an inner tube float on a river sought damages for personal injury incurred when his tube struck a fallen log. The plaintiff sued the company and its owners who rented him the inner tube and who selected the site where participants entered the river, claiming that the defendants owed him a duty to warn about a fallen log in the river that was hidden from but was near the entry site. The plaintiff also claimed that the defendants violated the Consumer Protection Act.

Superior Court: The Superior Court for Chelan County, No. 13-2-00663-9, Lesley A. Allan, J., on April 14, 2016, entered a summary judgment in favor of the defendants, dismissing all of the plaintiff’s claims.

Court of Appeals: Holding that the defendants did not have a duty to warn the plaintiff about the fallen log because the plaintiff assumed the risk of a fallen log and swift current by voluntarily participating in the activity, the court affirms the judgment.

HEADNOTES WASHINGTON OFFICIAL REPORTS HEADNOTES

[1] Negligence — Assumption of Risk — Sports — River Float — Assumed Risks — Fallen Trees — Swift Current. By voluntarily participating in a float on a wild river, one assumes the inherent risks of fallen trees in the water and a swift current. The assumption of risk may relieve the organizer of the activity of an actionable duty to warn about or to prevent injury from trees in the river.

[2] Negligence — Assumption of Risk — Sports — Nature of Assumed Risk. Assumption of risk in the context of participating in a sport is in reality the principle of no duty to warn of the hazards of the sport, in which case there can be no breach of duty and no actionable claim for negligence.

[3] Negligence — Duty — Necessity — In General. A cause of action for negligence will not lie absent the existence of a duty of care.

[4] Negligence — Assumption of Risk — Effect — Relief From Duty. The tort concept of duty overlaps with the contract and tort principles of assumption of risk. An assumption of risk can sometimes relieve a defendant of a duty.

[5] Negligence — Duty — Question of Law or Fact — In General. Whether a defendant owed a duty to a plaintiff is a question of law.

[6] Negligence — Assumption of Risk — Classifications. The term “assumption of risk” expresses several distinct common law theories, derived from different sources, that apply when one is knowingly exposed to a particular risk. The general rubric of assumption of risk does not signify a singular doctrine but, rather, encompasses a cluster of discrete concepts. The law recognizes four taxonomies of assumption of risk: (1) express, (2) implied primary, (3) implied unreasonable, and (4) implied reasonable.

[7] Negligence — Assumption of Risk — Effect — In General. Express assumption of risk and implied primary assumption of risk operate as complete bars to a plaintiff’s recovery. Implied unreasonable assumption of risk and implied reasonable assumption of risk are merely alternative names for contributory negligence and merely reduce a plaintiff’s recoverable damages based on comparative fault pursuant to RCW 4.22.005 and RCW 4.22.015.

[8] Negligence — Assumption of Risk — Express Assumption — What Constitutes — In General. Express assumption of risk arises when one explicitly consents to relieve another of a duty regarding specific known risks.

[9] Negligence — Assumption of Risk — Implied Primary Assumption — What Constitutes — In General. Implied primary assumption of risk follows from one’s engaging in risky conduct, from which the law implies consent.

[10] Negligence — Assumption of Risk — Implied Unreasonable Assumption — Focus of Inquiry. Implied unreasonable assumption of risk primarily focuses on the objective unreasonableness of one’s conduct in assuming a risk.

[11] Negligence — Assumption of Risk — Implied Reasonable Assumption — What Constitutes. Implied reasonable assumption of risk is roughly the counterpart to implied unreasonable assumption of risk in that one assumes a risk, but acts reasonably in doing so.

[12] Negligence — Assumption of Risk — Implied Unreasonable Assumption — Implied Reasonable Assumption — Comparison. The gist of implied reasonable and implied unreasonable assumption of risk is that a defendant performed conduct that increased the risk of an activity or situation beyond the inherent risks thereof and the plaintiff reasonably or unreasonably encountered the increased risk. The categories of implied unreasonable and implied reasonable assumption of risk hold no meaningful distinction since both reduce rather than bar a plaintiff’s recovery.

[13] Negligence — Assumption of Risk — Inherent Peril — Risk of Activity — Assuming the Dangers. Inherent peril assumption of risk–also known as implied primary assumption of risk–bars a plaintiff’s claim resulting from specific known and appreciated risks impliedly assumed, often in advance of any negligence by the defendant. A plaintiff’s consent to relieve a defendant of any duty is implied based on the plaintiff’s decision to engage in an activity that involves the known risks.

[14] Negligence — Assumption of Risk — Sports — Implied Assumption. One who participates in a sport impliedly assumes the risks inherent in the sport.

[15] Negligence — Assumption of Risk — Inherent Peril — Applicability — Sports — In General. Under the theory of inherent peril assumption of risk, a plaintiff assumes the dangers that are inherent in and necessary to a particular activity. To the extent a risk inherent in a sport injures a plaintiff, the defendant has no duty and there is no negligence. A defendant does not have a duty to protect a sports participant from dangers that are an inherent and normal part of the sport.

[16] Negligence — Assumption of Risk — Inherent Peril — Applicability — Sports — Water Sports. Inherent peril assumption of risk extends to water sports. One who engages in a water sport assumes the reasonably foreseeable risks inherent in the activity. This assumption of risk includes inner tubing on water. Bodies of water often undergo change, and changing conditions in the water do not alter the assumption of risk. There is no duty to warn of the presence of natural transitory conditions in the water.

[17] Negligence — Assumption of Risk — Inherent Peril — Test. Inherent peril assumption of risk requires evidence that (1) the plaintiff possessed at least an understanding (2) of the presence and nature of the specific risk and (3) voluntarily chose to encounter the risk. In the usual case, a plaintiff’s knowledge and appreciation of a danger is a question of fact, but if it is clear that any person in the plaintiff’s position would have understood the danger, the issue may be decided by a court as a matter of law.

[18] Negligence — Assumption of Risk — Sports — Negligence Enhancing Assumed Risk. While participants in sports are generally held to have impliedly assumed the risks inherent in the sport, such assumption of risk does not preclude recovery for the negligent acts of others that unduly enhance such risks.

[19] Negligence — Assumption of Risk — Inherent Peril — Limited Application. Inherent peril assumption of risk is the exception rather than the rule in assumption of risk situations.

[20] Negligence — Assumption of Risk — Increased Danger — What Constitutes. Increased danger assumption of risk–also known as implied unreasonable assumption of risk and implied reasonable assumption of risk–does not involve a plaintiff’s consent to relieve a defendant of a duty. In this type of assumption of risk, the defendant breached a duty that created a risk of harm, and the plaintiff chose to take that risk. Increased danger assumption of risk involves a plaintiff’s voluntary choice to encounter a risk created by a defendant’s negligence. Increased danger assumption of risk arises when a plaintiff knows of a risk already created by the negligence of the defendant, yet chooses voluntarily to encounter it. In such a case, the plaintiff’s conduct is not truly consensual, but is a form of contributory negligence, in which the negligence consists of making the wrong choice and voluntarily encountering a known unreasonable risk.

[21] Negligence — Assumption of Risk — Increased Danger — Applicability. Increased danger assumption of risk does not apply in circumstances where the defendant did not create and could not remove the risk and where the plaintiff did not voluntarily take the risk because the plaintiff did not know the precise nature of the risk beforehand and lacked time to avoid the risk once it became apparent.

[22] Negligence — Assumption of Risk — Inherent Peril — Knowledge of Risk — Warning — Statements in Written Release — Sufficiency. A recitation in a release of liability warning of dangers inherent in an activity can be sufficient to notify a person of the risks of the activity that may give rise to inherent peril assumption of risk where the person chooses to engage in the activity and sustains injury from such dangers.

[23] Negligence — Assumption of Risk — Inherent Peril — Scope of Defense — Gross Negligence — Intentional or Reckless Conduct. Inherent peril assumption of risk in a sporting or outdoor activity may allow a defendant to avoid liability for gross negligence but not for intentional or reckless conduct. A recklessness standard encourages vigorous participation in recreational activities, while still providing protection from egregious conduct. An actor’s conduct is in “reckless disregard” of the safety of another if the actor intentionally does an act or fails to do an act that it is the actor’s duty to the other to do, knowing or having reason to know of facts that would lead a reasonable person to realize that the actor’s conduct not only creates an unreasonable risk of bodily harm to the other but also involves a high degree of probability that substantial harm will result to the other. Fearing, C.J., delivered the opinion for a unanimous court.

COUNSEL: Richard D. Wall (of Richard D. Wall PS), for appellant.

Kristen Dorrity (of Andrews o Skinner PS), for respondents.

JUDGES: Authored by George Fearing. Concurring: Kevin Korsmo, Laurel Siddoway.

OPINION BY: George Fearing

OPINION

[*403] ¶1 Fearing, C.J. — This appeal asks: does an inner tube rental company owe a duty to warn a renter about a fallen log in a river when the log is hidden from but near the launch site, the river’s current draws the tuber toward the log, the company knows of the fallen log, the company warns other tubers of the log, and the company chooses the launch site? To answer this question, interests such as exhilarating and uninhibited outdoor recreation, retaining the natural environment, and freedom to contract compete with cautious business practices, full disclosure of risks, and compensation for injury. Based on the doctrine of inherent peril assumption of risk, we answer the question in the negative. We affirm the trial court’s summary judgment dismissal of renter Brian Pellham’s suit for personal injury against the tube [**2] rental company, Let’s Go Tubing, Inc.

FACTS

¶2 Brian Pellham sues for injuries suffered while inner tubing on the Yakima River. Because the trial court dismissed Pellham’s suit on summary judgment, we write the facts in a light favorable to Pellham.

¶3 Melanie Wells invited Brian Pellham and his domestic partner to join her and three others on a leisurely unguided excursion floating the Yakima River. Wells arranged the expedition and reserved equipment and transportation from Let’s Go Tubing, Inc.

¶4 [*404] On July 30, 2011, Brian Pellham met the Wells party at the Let’s Go Tubing’s Umtanum gathering site, where additional tubers waited. Before boarding a bus, each participant signed a release of liability and assumption of risk form. Pellham felt rushed but read and signed the form. The form provided:

I, the renter of this rental equipment, assume and understand that river tubing can be HAZARDOUS, and that rocks, logs, bridges, plants, animals, other people, other water craft, exposure to the elements, variations in water depth and speed of current, along with other structures and equipment, and many other hazards or obstacles exist in the river environment. In using the rental equipment or any facilities [**3] or vehicles related thereto such dangers are recognized and accepted whether they are marked or unmarked. River tubing can be a strenuous and physically demanding activity. It requires walking, bending, lifting, paddling, swimming, and awareness of the outdoor environment. I realize that slips, falls, flips, and other accidents do occur and serious injuries or death may result and I assume full responsibility for these risks … . “IN CONSIDERATION FOR THIS RENTAL AND ANY USE OF THE FACILITIES, VEHICLES, OR ENVIRONMENT RELATED TO THE USE OF THIS EQUIPMENT, I HEREBY RELEASE HOLD HARMLESS AND INDEMNIFY LET’S GO TUBING, INC. ITS SUBSIDIARIES AND ITS AGENTS FROM ANY AND ALL CLAIMS AND LIABILITIES ARISING OUT OF OR IN CONNECTION WITH THE USE OF THIS RENTAL EQUIPMENT.”

Clerk’s Papers at 46. On other occasions, such as a rafting trip, Brian Pellham has signed a waiver. In his business, he employs release forms.

¶5 Let’s Go Tubing launches its customers from the Umtanum site unless the Yakima River level runs low. With low water, the company buses customers to one of two other Yakima River sites, Big Horn or Ringer Loop.

¶6 On July 30, 2011, Let’s Go Tubing’s shuttle bus, because [**4] of a low river level, transported Brian Pellham, his group members, and other customers eight miles upstream [*405] to Ringer Loop. Ringer Loop maintains a public concrete boat ramp and public restroom. The total number of customers on the excursion approached twenty. During transport, Steff Thomas, the Let’s Go Tubing bus driver, told Melanie Wells and a handful of others seated at the front of the bus to push into the middle of the river once they embarked, because a fallen tree obstructed the river immediately downriver but out of sight from the launch site. We do not know the number of customers the driver warned. Thomas did not warn Pellham of the obstructing tree. Nor did anyone else. Someone, possibly Thomas, warned everyone not to leave the river except at designated spots because private owners own most of the riverbank.

¶7 At the launch site, Let’s Go Tubing handed each person a Frisbee to use as a paddle. Brian Pellham requested a life jacket, but Steff Thomas ignored him. Fifteen inner tubers entered the river first. Pellham and four others followed in a second group with their tubes tied together. They encountered a swift current. As soon as the flotilla of five rounded the [**5] first bend in the river, they saw a fallen tree extending halfway across the river. Many branches extended from the tree trunk. Each paddled furiously with his or her Frisbee, but the fleet of five inner tubes struck the tree. Brian Pellham held the tree with his left hand and attempted to steer around the tree. The current grabbed the inner tubes and Pellham fell backward into the river. The fall broke Pellham’s eardrum. The current forced Pellham under the tree and the water level. When Pellham resurfaced, his head struck a large branch. He sustained a whiplash injury. His chest also hit the branch.

¶8 Brian Pellham swam to shore and ended his river excursion. Pellham told Steff Thomas of his dangerous encounter, and the driver admitted he knew about the fallen tree but laws prevented Let’s Go Tubing from removing the obstacle.

[*406] ¶9 Brian Pellham later underwent a neck fusion surgery. The accident also caused damage to a low back disk, and the damage creates pain radiating to his left foot.

PROCEDURE

¶10 Brian Pellham sued Let’s Go Tubing for negligent failure to warn and Consumer Protection Act, chapter 19.86 RCW, violations. Let’s Go Tubing answered the complaint and raised affirmative defenses, including release of liability and [**6] assumption of the risk. The company filed a motion for summary judgment dismissal based on the release and on assumption of risk. In response to the motion, Pellham argued that he did not waive liability because Let’s Go Tubing committed gross negligence. He also argued he did not expressly or impliedly assume the risk of floating into a hazard. Pellham agreed to dismissal of his consumer protection claim. The trial court granted summary dismissal of all of Pellham’s claims.

LAW AND ANALYSIS

¶11 On appeal, Brian Pellham contends the trial court erred in dismissing his claim because he presented sufficient evidence of gross negligence because Let’s Go Tubing chose the excursion location, knew of the existence of a hazard, and failed to warn Pellham of the hazard. He argues that the rental company’s gross negligence supersedes any release of liability and assumption of the risk contained in the form he signed. On appeal, he does not argue liability against Let’s Go Tubing for failing to provide a life vest.

[1] ¶12 Let’s Go Tubing responds that summary judgment was appropriate because Pellham failed to establish a duty, the liability release disposes of the claim, and Pellham’s evidence does not create [**7] a genuine issue as to any fact material to establishing gross negligence. We affirm based on the inherent risks in river tubing. Because of Pellham’s [*407] voluntary participation in the outdoor recreation activity, he assumed the risk of a fallen log and swift current. Conversely, Pellham’s assumption of the risk created no duty for Let’s Go Tubing to warn Pellham of or prevent injury to him from trees in the river. Because we rely on the inherent risks in river tubing, we do not address whether the written agreement signed by Pellham bars his suit.

¶13 Because we hold that Brian Pellham assumed the risk and thereby rendered Let’s Go Tubing dutyless, we do not address whether Pellham created an issue of fact with regard to gross negligence. We conclude that, to avoid application of inherent peril assumption of risk, Pellham needed to show intentional or reckless misconduct of the rental company, and Pellham does not show or argue either.

Summary Judgment Principles

¶14 We commence with our obligatory recitation of summary judgment principles. [HN1] This court reviews a summary judgment order de novo, engaging in the same inquiry as the trial court. Highline School District No. 401 v. Port of Seattle, 87 Wn.2d 6, 15, 548 P.2d 1085 (1976); Mahoney v. Shinpoch, 107 Wn.2d 679, 683, 732 P.2d 510 (1987). [HN2] Summary judgment is proper if the records on file with the [**8] trial court show “there is no genuine issue as to any material fact” and “the moving party is entitled to a judgment as a matter of law.” CR 56(c). [HN3] This court, like the trial court, construes all evidence and reasonable inferences in the light most favorable to Brian Pellham, as the nonmoving party. Barber v. Bankers Life & Casualty Co., 81 Wn.2d 140, 142, 500 P.2d 88 (1972); Wilson v. Steinbach, 98 Wn.2d 434, 437, 656 P.2d 1030 (1982). [HN4] A court may grant summary judgment if the pleadings, affidavits, and depositions establish that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Lybbert v. Grant County, 141 Wn.2d 29, 34, 1 P.3d 1124 (2000).

[*408] Defenses on Review

¶15 Let’s Go Tubing seeks affirmation of the summary judgment dismissal of Brian Pellham’s claim based on both an absence of duty and Pellham’s assumption of risk. In turn, Pellham argues that, under RAP 2.5(a), the rental company may not assert a lack of duty because the company did not raise this defense before the trial court.

[2] ¶16 We need not address Brian Pellham’s objection to Let’s Go Tubing’s argument of lack of duty. We base our decision on inherent peril assumption of risk, and the rental company raised the defense of assumption of risk below. Anyway, assumption of risk in this context is equivalent to a lack of duty. [HN5] Assumption of the risk in the sports participant context is in [**9] reality the principle of no duty and hence no breach and no underlying cause of action. Brown v. Stevens Pass, Inc., 97 Wn. App. 519, 523, 984 P.2d 448 (1999); Codd v. Stevens Pass, Inc., 45 Wn. App. 393, 401-02, 725 P.2d 1008 (1986).

Assumption of Risk

[3, 4] ¶17 [HN6] A negligence claim requires the plaintiff to establish (1) the existence of a duty owed, (2) breach of that duty, (3) a resulting injury, and (4) a proximate cause between the breach and the injury. Tincani v. Inland Empire Zoological Society, 124 Wn.2d 121, 127-28, 875 P.2d 621 (1994). Thus, to prevail on his negligence claim, Brian Pellham must establish that Let’s Go Tubing owed him a duty of care. Folsom v. Burger King, 135 Wn.2d 658, 671, 958 P.2d 301 (1998). [HN7] The tort concept of duty overlaps with the contract and tort principles of assumption of risk. As previously mentioned, sometimes assumption of risk relieves the defendant of a duty. Brown v. Stevens Pass, Inc., 97 Wn. App. at 523 (1999); Codd v. Stevens Pass, Inc., 45 Wn. App. at 402 (1986).

[5] ¶18 [HN8] The threshold determination of whether a duty exists is a question of law. Tincani v. Inland Empire Zoological [*409] Society, 124 Wn.2d at 128; Coleman v. Hoffman, 115 Wn. App. 853, 858, 64 P.3d 65 (2003). We hold that, because of Brian Pellham’s assumption of the risk of fallen trees in the water, Let’s Go Tubing, as a matter of law, had no duty to warn Pellham of the danger or, at the least, the rental company possessed only a restricted duty to not intentionally injure Pellham or engage in reckless misconduct.

[6] ¶19 We first briefly explore the variegated versions of assumption of risk in order to later analyze the application of inherent peril assumption of risk. [HN9] The term “assumption of the risk” expresses [**10] several distinct common law theories, derived from different sources, which apply when a plaintiff knowingly exposes himself to particular risks. Allen v. Dover Co-Recreational Softball League, 148 N.H. 407, 807 A.2d 1274, 1281 (2002); Francis H. Bohlen, Voluntary Assumption of Risk (pt. 1), 20 Harv. L. Rev. 14, 15-30 (1906); W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 68 (5th ed. 1984). Stated differently, the general rubric of assumption of risk does not signify a singular doctrine but rather encompasses a cluster of discrete concepts. Kirk v. Washington State University, 109 Wn.2d 448, 453, 746 P.2d 285 (1987). Washington law and most other states’ jurisprudence recognize four taxonomies of the assumption of risk doctrine: (1) express, (2) implied primary, (3) implied unreasonable, and (4) implied reasonable. Gregoire v. City of Oak Harbor, 170 Wn.2d 628, 636, 244 P.3d 924 (2010) (plurality opinion); Gleason v. Cohen, 192 Wn. App. 788, 794, 368 P.3d 531 (2016); 16 David K. DeWolf & Keller W. Allen, Washington Practice: Tort Law and Practice § 9:11, at 398-99 (4th ed. 2013).

[7] ¶20 Before the enactment of comparative negligence and comparative fault statutes, practitioners and courts encountered little reason to distinguish the four versions of assumption of risk because at common law all assumption of the risk completely barred recovery. Scott v. Pacific West Mountain Resort, 119 Wn.2d 484, 496, 834 P.2d 6 (1992). [*410] Today, [HN10] the first two categories of assumption of risk, express assumption and implied primary assumption, on the one hand, continue to operate as a complete bar to a plaintiff’s recovery. Kirk v. Washington State University, 109 Wn.2d at 453-54; Gleason v. Cohen, 192 Wn. App. at 794. On the other hand, implied unreasonable and implied [**11] reasonable assumption meld into contributory negligence and merely reduce the plaintiff’s recoverable damages based on comparative fault pursuant to RCW 4.22.005 and .015. Scott v. Pacific West Mountain Resort, 119 Wn.2d at 497. The last two types are merely alternative names for contributory negligence. Gregoire v. City of Oak Harbor, 170 Wn.2d at 636 (2010). Our decision relies on implied primary assumption, but we will discuss other renderings of assumption of risk in order to sculpt our decision.

[8-11] ¶21 [HN11] Express assumption of risk arises when a plaintiff explicitly consents to relieve the defendant of a duty owed by the defendant to the plaintiff regarding specific known risks. Gregoire v. City of Oak Harbor, 170 Wn.2d at 636; Kirk v. Washington State University, 109 Wn.2d at 453. [HN12] Implied primary assumption of risk follows from the plaintiff engaging in risky conduct, from which the law implies consent. Kirk v. Washington State University, 109 Wn.2d at 453; Erie v. White, 92 Wn. App. 297, 303, 966 P.2d 342 (1998). [HN13] Implied unreasonable assumption of risk, by contrast, focuses not so much on the duty and negligence of the defendant as on the further issue of the objective unreasonableness of the plaintiff’s conduct in assuming the risk. Kirk v. Washington State University, 109 Wn.2d at 454. [HN14] Implied reasonable assumption of risk is roughly the counterpart to implied unreasonable assumption of risk in that the plaintiff assumed a risk but acted reasonably in doing so. Kirk v. Washington State University, 109 Wn.2d at 454.

[12] ¶22 We confront difficulty in distinguishing among at least three of the four categories because of the [**12] nondescript identifiers and near homophonic labels of some classifications. Therefore, we recommend that the Supreme [*411] Court rechristen the categories as express assumption, inherent peril assumption of risk, and increased danger assumption of risk. [HN15] The gist of implied reasonable and implied unreasonable assumption of risk is that the defendant performed conduct that increased the risk of an activity or situation beyond the risks inherent in the activity or situation and the plaintiff reasonably or unreasonably encountered this increased risk. The traditional categories of implied unreasonable and implied reasonable assumption of risk hold no meaningful distinction since both reduce rather than bar the plaintiff’s recovery, and so we urge combining the two concepts into increased danger assumption of risk. We hereafter use these new terms.

Inherent Peril Assumption of Risk

[13, 14] ¶23 We now focus on inherent peril assumption of risk. [HN16] Inherent peril assumption bars a claim resulting from specific known and appreciated risks impliedly assumed often in advance of any negligence of the defendant. Scott v. Pacific West Mountain Resort, 119 Wn.2d at 497 (1992); Boyce v. West, 71 Wn. App. 657, 666-67, 862 P.2d 592 (1993). Plaintiff’s consent to relieve the defendant of any duty is implied based on the plaintiff’s decision [**13] to engage in an activity that involves those known risks. Egan v. Cauble, 92 Wn. App. 372, 376, 966 P.2d 362 (1998); Gleason v. Cohen, 192 Wn. App. at 797 (2016). [HN17] One who participates in sports impliedly assumes the risks inherent in the sport. Scott v. Pacific West Mountain Resort, 119 Wn.2d at 498; Boyce v. West, 71 Wn. App. at 667.

[15] ¶24 [HN18] Whether inherent peril assumption of risk applies depends on whether the plaintiff was injured by an inherent risk of an activity. Gleason v. Cohen, 192 Wn. App. at 797. The plaintiff assumes the dangers that are inherent in and necessary to a particular activity. Tincani v. Inland Empire Zoological Society, 124 Wn.2d at 144 (1994); Scott v. Pacific West Mountain Resort, 119 Wn.2d at 500-01; Gleason [*412] v. Cohen, 192 Wn. App. at 797; Lascheid v. City of Kennewick, 137 Wn. App. 633, 641-42, 154 P.3d 307 (2007); Taylor v. Baseball Club of Seattle, LP, 132 Wn. App. 32, 37-39, 130 P.3d 835 (2006); Dorr v. Big Creek Wood Products, Inc., 84 Wn. App. 420, 427, 927 P.2d 1148 (1996).

¶25 [HN19] The classic example of inherent peril assumption involves participation in sports when a participant knows that the risk of injury is a natural part of such participation. Gleason v. Cohen, 192 Wn. App. at 798. One who engages in sports assumes the risks that are inherent in the sport. Scott v. Pacific West Mountain Resort, 119 Wn.2d at 498; Gleason v. Cohen, 192 Wn. App. at 798. To the extent a risk inherent in the sport injures a plaintiff, the defendant has no duty and there is no negligence. Scott v. Pacific West Mountain Resort, 119 Wn.2d at 498; Gleason v. Cohen, 192 Wn. App. at 798. A defendant simply does not have a duty to protect a sports participant from dangers that are an inherent and normal part of a sport. Scott v. Pacific West Mountain Resort, 119 Wn.2d at 498; Gleason v. Cohen, 192 Wn. App. at 798.

[16] ¶26 [HN20] Inherent peril assumption extends to water sports. One who engages in water sports assumes the reasonably foreseeable risks inherent in the activity. DeWick v. Village of Penn Yan, 275 A.D.2d 1011, 713 N.Y.S.2d 592, 594 (2000). This assumption of risk includes inner tubing on water and canoe rentals. Record v. Reason, 73 Cal. App. 4th 472, 86 Cal. Rptr. 2d 547 (1999); Ferrari v. Bob’s Canoe Rental, Inc., 143 A.D.3d 937, 39 N.Y.S.3d 522 (2016). Bodies of water often undergo change, and changing conditions in the water [**14] do not alter the assumption of risk. DeWick v. Village of Penn Yan, 713 N.Y.S.2d at 594. There is no duty to warn of the presence of natural transitory conditions. DeWick v. Village of Penn Yan, 713 N.Y.S.2d at 594.

¶27 DeWick v. Village of Penn Yan, 275 A.D.2d 1011 is illustrative of the application of inherent peril assumption in the context of water. Trina Kerrick and Daniel DeWick [*413] drowned in Keuka Lake on June 19, 1995. Kerrick allegedly gained access to the lake from the beach at Indian Pines Park, which was owned by defendant Village of Penn Yan. While wading in the water, she stepped from a sandbar where the lake bottom drops off and became caught in an undertow or current. DeWick drowned trying to save her. Neither could swim. The accident occurred on a hot day, four days before the beach officially opened for the season. The plaintiffs alleged that the village failed to warn specifically about the dangers of the drop-off and swift current. The court summarily dismissed the suit. The risk of reaching a drop-off was a reasonably foreseeable risk inherent in wading into a lake.

[17] ¶28 [HN21] Inherent peril assumption, like express assumption of risk, demands the presence of three elements. The evidence must show (1) the plaintiff possessed full subjective understanding (2) of the presence and nature of the specific risk and (3) voluntarily [**15] chose to encounter the risk. Kirk v. Washington State University, 109 Wn.2d at 453 (1987). The participant must know that the risk is present, and he or she must further understand its nature; his or her choice to incur it must be free and voluntary. Brown v. Stevens Pass, Inc., 97 Wn. App. at 523. In the usual case, his or her knowledge and appreciation of the danger will be a question for the jury; but where it is clear that any person in his or her position must have understood the danger, the issue may be decided by the court. Brown v. Stevens Pass, Inc., 97 Wn. App. at 523; Keeton et al., supra, § 68, at 489.

¶29 [HN22] The rule of both express and inherent peril assumption of risk requires a finding that the plaintiff had full subjective understanding of the presence and nature of the specific risk. Kirk v. Washington State University, 109 Wn.2d at 453. Depending on how specific the risk must be, this statement of the rule taken literally would abrogate the rule of inherent peril assumption because one rarely, if ever, anticipates the full particulars of an accident producing injury. One can never predict all of the variables that [*414] combine to cause an accident and injury. Also, the doctrine might not apply in wrongful death cases, because the judge or jury will lack evidence of the subjective understanding of the decedent. Washington courts’ applications of the rule suggest, however, that the plaintiff need only know [**16] the general nature of the risk. One case example is Boyce v. West, 71 Wn. App. 657 (1993).

¶30 In Boyce v. West, a mother brought a suit against a college and its scuba diving instructor after the death of her son, who died during a scuba diving accident while engaging in the college course. The mother claimed the instructor negligently taught and supervised her son. The son, Peter Boyce, signed a document acknowledging the possibility of death from scuba diving and assuming all risks in connection with the course, whether foreseen or unforeseen. This court affirmed summary judgment dismissal of the claims against the school and the instructor. The court reasoned that negligent instruction and supervision are risks associated with being a student in a scuba diving course and were encompassed by the broad language of the contract. Although Peter may not have specifically considered the possibility of instructor negligence when he signed the release, this lack of consideration did not invalidate his express assumption of all risks associated with his participation in the course. [HN23] Knowledge of a particular risk is unnecessary when the plaintiff, by express agreement, assumes all risks.

¶31 Boyce v. West entails express assumption of [**17] risk, but [HN24] the same rule of subjective knowledge of risk applies to both express assumption and inherent peril assumption. Based on Boyce v. West and cases involving water sports, we hold that Brian Pellham assumed the risks involved in river tubing, including the fallen tree. Pellham may not have precisely and subjectively known how the combination of a swift current, a bend in the river, and a fallen tree would produce his injury. Nevertheless, he knew of the potential of all factors. He may not have known of the location of any [*415] fallen tree in the river, but he knew of the potential of a fallen tree somewhere in the river. He had more reason to know of the dangers that caused his injury when he started his excursion than Peter Boyce had reason to know of the risks that led to his death when Boyce signed his college course form. In the setting of inherent peril assumption, New York courts have ruled that, [HN25] if the participant fully comprehends the risks of the activity or if those risks are obvious or reasonably foreseeable, he or she has consented to those risks and the defendant has performed its duty. Ferrari v. Bob’s Canoe Rental, Inc., 143 A.D.3d at 938 (2016); Turcotte v. Fell, 68 N.Y.2d 432, 439, 502 N.E.2d 964, 510 N.Y.S.2d 49 (1986).

[18] ¶32 [HN26] While participants in sports are generally held to have impliedly assumed the risks [**18] inherent in the sport, such assumption of risk does not preclude a recovery for negligent acts that unduly enhance such risks. Scott v. Pacific West Mountain Resort, 119 Wn.2d at 501; Gleason v. Cohen, 192 Wn. App. at 798. This principle leads us to a discussion of increased danger assumption.

[19] ¶33 [HN27] Courts have struggled to properly distinguish between inherent peril assumption of risk (implied primary assumption of risk), which bars the plaintiff’s claim, and increased danger assumption of risk (implied unreasonable assumption of risk), which simply reduces the plaintiff’s damages. Barrett v. Lowe’s Home Centers, Inc., 179 Wn. App. 1, 6, 324 P.3d 688 (2013). This court warned long ago that courts must carefully draw the line between these two types of assumption of risk. Gleason v. Cohen, 192 Wn. App. at 795; Dorr v. Big Creek Wood Products, Inc., 84 Wn. App. at 425-26 (1996). A rigorous application of inherent peril assumption of risk could undermine the purpose of comparative negligence. Kirk v. Washington State University, 109 Wn.2d at 455-56. Significantly, [HN28] inherent peril assumption is the exception rather than the rule in assumption of risk situations.

[20] ¶34 [HN29] Increased danger assumption of risk does not involve a plaintiff’s consent to relieve the defendant of a [*416] duty. Gleason v. Cohen, 192 Wn. App. at 796. In this type of assumption of risk, the defendant breached a duty that created a risk of harm, and the plaintiff chose to take that risk. Gleason v. Cohen, 192 Wn. App. at 796. Specifically, increased danger assumption involves the plaintiff’s voluntary choice to encounter a risk created [**19] by the defendant’s negligence. Scott v. Pacific West Mountain Resort, 119 Wn.2d at 499; Gleason v. Cohen, 192 Wn. App. at 796. Increased danger assumption of risk arises when the plaintiff knows of a risk already created by the negligence of the defendant, yet chooses voluntarily to encounter it. Scott v. Pacific West Mountain Resort, 119 Wn.2d at 499 (1992); Gleason v. Cohen, 192 Wn. App. at 798. In such a case, a plaintiff’s conduct is not truly consensual but is a form of contributory negligence, in which the negligence consists of making the wrong choice and voluntarily encountering a known unreasonable risk. Gleason v. Cohen, 192 Wn. App. at 796.

¶35 Dorr v. Big Creek Wood Products, Inc., 84 Wn. App. 420, 927 P.2d 1148 (1996) presents a good illustration of increased danger assumption of risk. Michael Dorr entered a forest where his friend John Knecht cut trees. Dorr knew of the phenomenon of “widow-makers,” large limbs caught in surrounding trees after a tree is felled. Nevertheless, after Knecht cut a tree, Knecht waved Dorr forward to meet him. As Dorr proceeded, a large limb fell on him. This court affirmed a verdict favoring Dorr. Although Dorr in general assumed the risk of “widow-makers,” Knecht’s misleading directions led to implied unreasonable or secondary assumption of risk. The jury could still find and did find Dorr comparatively at fault for proceeding with the knowledge of “widow-makers,” but Dorr’s fault would be compared with Knecht’s fault. The negligence of Knecht [**20] arose after Dorr entered the forest.

[21] ¶36 Brian Pellham alleges that Let’s Go Tubing was negligent by reason of sending him and others on inner tubes in fast moving water with a downed tree in the middle [*417] of the water without warning to the tuber. Let’s Go Tubing did not create the risk and could not remove the risk. Although Pellham knew of the risks of logs and current, Pellham did not know of the precise risk when he first encountered it. When he noticed the risk, he lacked time to avoid the hazard. Pellham did not voluntarily proceed after knowing of the alleged negligence of Let’s Go Tubing. Any alleged negligence of Let’s Go Tubing occurred before Pellham entered the river. Therefore, increased danger assumption of risk does not apply.

¶37 Let’s Go Tubing performed no act that created the swift current or felled the log into the water. [HN30] The cases that decline application of inherent peril assumption involve a positive act of the defendant, such as the implanting of a post or snow shack adjacent to a ski run. Scott v. Pacific West Mountain Resort, 119 Wn.2d 484 (1992); Brown v. Stevens Pass, Inc., 97 Wn. App. at 521 (1999).

¶38 One might argue that Let’s Go Tubing’s failure to warn increased the risk attended to the fallen log in the Yakima River. [HN31] A defendant may be held liable when a reasonable person would customarily [**21] instruct a plaintiff in respect to the dangers inherent in an activity. Allen v. Dover Co-Recreational Softball League, 807 A.2d at 1288. Thus, a defendant may be held liable if the plaintiff alleges that a reasonable person would customarily warn, advise, inform, and instruct regarding the risk of injury to participants and the manner in which such risks could be minimized and their failure to do so caused the plaintiff’s injuries. Allen v. Dover Co-Recreational Softball League, 807 A.2d at 1288. Brian Pellham presents no evidence that those who rent out watercrafts customarily warn of fallen natural objects in the water.

[22] ¶39 The document signed by Brian Pellham contained terms in addition to releasing Let’s Go Tubing from liability. In the instrument, Pellham also recognized that the hazards of river tubing included the existence of rocks, logs, plants, and variations in water depth and speed of [*418] current. Pellham agreed to assume full responsibility for all risks involved in river tubing, including serious injuries and death resulting from the hazards. Although we do not base our holding on express assumption of risk, we note that the release’s recitation of dangers warned Pellham of the inherent perils attended to inner tubing and those dangers that led to Pellham’s injuries.

Gross Negligence

¶40 Brian Pellham argues that the waiver [**22] form he signed does not bar a claim for gross negligence. The parties, in turn, devote much argument to the issue of whether Pellham creates a question of fact as to gross negligence. Since we do not rely on express assumption of risk, we need not directly address this argument. Instead, we must ask and answer whether a tuber may overcome the defense of inherent peril assumption of risk by showing gross negligence by the inner tube rental company.

¶41 [HN32] When inherent peril assumption of risk applies, the plaintiff’s consent negates any duty the defendant would have otherwise owed to the plaintiff. Scott v. Pacific West Mountain Resort, 119 Wn.2d at 498 (1992); Gleason v. Cohen, 192 Wn. App. at 798 (2016). Based on this premise of inherent peril assumption, the defendant should avoid liability for gross negligence. Gross negligence constitutes the failure to exercise slight care. Nist v. Tudor, 67 Wn.2d 322, 331, 407 P.2d 798 (1965). The lack of duty resulting from inherent peril assumption should extend to an absence of any obligation to exercise slight care.

¶42 At the same time, [HN33] gross negligence claims survive a release against liability. A sporting participant’s assumption of inherent risks effectively acts as a release from liability. Since gross negligence claims survive a release, gross negligence maybe should survive inherent peril assumption of risk. [**23]

¶43 No Washington case directly holds that a claim for gross negligence survives the plaintiff’s express assumption [*419] of risk. Nevertheless, in at least two decisions, Washington courts assumed that a gross negligence cause of action endured. Boyce v. West, 71 Wn. App. 657 (1993); Blide v. Rainier Mountaineering, Inc., 30 Wn. App. 571, 636 P.2d 492 (1981). In Boyce v. West, the surviving mother failed to present evidence of gross negligence. In Blide v. Rainier Mountaineering, Inc., an injured climber did not argue gross negligence. Other jurisdictions have held that express assumption of risk does not bar a claim for gross negligence since public policy does not allow one to exonerate oneself from gross negligence. Coomer v. Kansas City Royals Baseball Corp., 437 S.W.3d 184, 193 n.3 (Mo. 2014); Kerns v. Hoppe, 128 Nev. 910, 381 P.3d 630 (2012); Perez v. McConkey, 872 S.W.2d 897, 904 (Tenn. 1994).

¶44 [HN34] Since express assumption of risk and inherent peril assumption of risk both result in the bar of the plaintiff’s claim and arise from the plaintiff’s voluntary assumption of risk, one might argue that a gross negligence claim should survive assumption of risk by inherent peril if it survives express assumption of risk. Nevertheless, the two varieties of assumption of risk promote different interests and raise disparate concerns. A signed assumption of all risks could be the result of unequal bargaining power and apply to activities that involve little, or no, risks. The bargaining [**24] power with regard to inherent peril assumption is immaterial. Assumption follows from hazards the plaintiff voluntarily assumes because of the thrill and enjoyment of an activity.

[23] ¶45 We find no foreign decisions in which the court holds that a cause of action for gross negligence survives the application of inherent peril assumption of risk in the context of sports or outdoor recreation. Instead, other courts addressing the question consistently [HN35] limit the liability of the defendant, when inherent peril assumption applies, to intentional or reckless conduct of the defendant. Ellis v. Greater Cleveland R.T.A., 2014-Ohio-5549, 25 N.E.3d 503, 507 (Ct. App.); Custodi v. Town of Amherst, 20 N.Y.3d 83, [*420] 980 N.E.2d 933, 957 N.Y.S.2d 268 (2012); Cole v. Boy Scouts of America, 397 S.C. 247, 725 S.E.2d 476, 478 (2011); Pfenning v. Lineman, 947 N.E.2d 392, 404 (Ind. 2011); Yoneda v. Tom, 110 Haw. 367, 133 P.3d 796, 808 (2006); Peart v. Ferro, 119 Cal. App. 4th 60, 13 Cal. Rptr. 3d 885, 898 (2004); Allen v. Dover Co-Recreational Softball League, 807 A.2d at 1281 (2002); Behar v. Fox, 249 Mich. App. 314, 642 N.W.2d 426, 428 (2001); Estes v. Tripson, 188 Ariz. 93, 932 P.2d 1364, 1365 (Ct. App. 1997); Savino v. Robertson, 273 Ill. App. 3d 811, 652 N.E.2d 1240, 1245, 210 Ill. Dec. 264 (1995); King v. Kayak Manufacturing Corp., 182 W. Va. 276, 387 S.E.2d 511, 518 (1989). A recklessness standard encourages vigorous participation in recreational activities, while still providing protection from egregious conduct. Behar v. Fox, 642 N.W.2d at 428 (2001). We join the other jurisdictions in imposing an intentional and reckless standard, rather than a gross negligence standard, when the plaintiff assumes the risks of inherent perils in a sporting or outdoor activity.

¶46 [HN36] Gross negligence consists of the failure to exercise slight care. Nist v. Tudor, 67 Wn.2d at 331 (1965). Reckless misconduct denotes a more serious level of misconduct than gross negligence. An actor’s conduct is in “reckless disregard” of the safety of another if he or she intentionally [**25] does an act or fails to do an act that it is his or her duty to the other to do, knowing or having reason to know of facts that would lead a reasonable person to realize that the actor’s conduct not only creates an unreasonable risk of bodily harm to the other but also involves a high degree of probability that substantial harm will result to him or her. Adkisson v. City of Seattle, 42 Wn.2d 676, 685, 258 P.2d 461 (1953); Brown v. Department of Social & Health Services, 190 Wn. App. 572, 590, 360 P.3d 875 (2015). Brian Pellham does not allege that Let’s Go Tubing engaged in reckless conduct. No evidence supports a conclusion that the inner tube rental company bus driver purposely omitted a warning to Pellham with knowledge that Pellham would suffer substantial harm.

[*421] CONCLUSION

¶47 We affirm the trial court’s summary judgment dismissal of Brian Pellham’s suit against Let’s Go Tubing.

Korsmo and Siddoway, JJ., concur.

LexisNexis Practice Guide: Washington Torts and Personal Injury

LexisNexis Practice Guide: Washington Trial and Post-Trial Civil Procedure

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

Tour of the Canyonlands was an 18-mile mountain bike race near Moab, Utah. Six miles of the course were on roads. The course was an open course meaning, there might be automobile traffic on the roads; the roads would not be closed to traffic.
Two plaintiffs’ struck a truck on the road, killing one of the mountain bikers.

Milne v. USA Cycling Inc., et. al., 575 F.3d 1120; 2009 U.S. App. LEXIS 17822

State: Utah, United States Court of Appeals for the Tenth Circuit

Plaintiff: Robert J. Milne, an individual; Timothy K. Sorrow, individually and as personal representative on behalf of his deceased son, Samuel B. Hall,

Defendant: USA Cycling Inc., a Colorado corporation, d/b/a National Off-road Bicycle Association; Cycle Cyndicate Inc.,

Plaintiff Claims: negligence, gross negligence, and wrongful death

Defendant Defenses: release, failure to state a claim to prove gross negligence

Holding: For the Defendant

Year: 2009

This is an attempt to recover damages by parents for the injuries they suffer when a son is hurt or dies. It probably involves as many emotional issues as it does legal ones such as how and why did my son die, why didn’t they do more to keep my son alive and possibly even some desire to protect others from the same
fate.

Two mountain bikers entered the Tour of the Canyonlands mountain bike race. Both had entered the race before and were classified as expert racers. They both signed a release prior to the race and had been told the first six miles of the course would be an open course.

An “open course” is one that is not closed to automobile traffic. Cycling on an “open course,” whether on a mountain bike or road bike, you will be encountering cars and be passed by cars. Approximately 25% of all mountain bike races are open course and a majority of road bike races in the US.

The race organizers had put up signs before the racing telling motorists that there was going to be a race. The organizers had volunteers along the route and first aid people to assist riders. They had made the effort to notify all campers on the race route about the race. The defendant driving the truck involved in the collision stated he was not notified about the race, but other people camping with him stated they had been notified.

The accident occurred when one racer attempted to pass another racer on the open part of the course while passing the automobile coming from the opposite direction. The automobile was a Ford Excursion pulling a 30’ trailer. The mountain bikers tangled, and one of the plaintiffs’s crashed into the truck.

Mr. Konitshek testified that, when he saw the oncoming bikers, he veered as far right in his lane of travel as possible, and remained on the right side of the road the entire time. He was going about 5 miles per hour when one of the bikers hit his left sideview mirror, causing it to bang into his window and shatter.

Mr. Hall had attempted to pass both himself and Mr. Milne. Mr. Byrd was immediately behind Mr. Milne, so Mr. Hall passed him first. Mr. Byrd testified that Mr. Hall passed very closely and, because of his proximity and his speed–Mr. Hall was riding about 25 miles per hour at that time–Mr. Casey could feel the wind coming off him as he passed. Then, as Mr. Hall began to pass Mr. Milne, their handlebars locked together, causing them to veer left and strike Mr. Konitshek’s camper. It is not entirely clear what happened next, but at least one racer testified that he saw the trailer run over Mr. Hall.

The release stopped the claims based on simple negligence and wrongful death of the plaintiffs. That left the claims for gross negligence. The Federal District Court (trial court) dismissed the plaintiff’s claims because the plaintiff had not pled any facts to prove their claim of gross negligence.

On the plaintiff’s gross negligence claims, the court determined that the undisputed facts showed that defendants had taken a number of steps to protect the racers’ safety, and even if those steps were taken negligently, they were not grossly negligent.

There was also an issue of the plaintiff’s expert witness whom the trial court had prevented from testifying because the trial court found him to not have any experience as a mountain bike race expert.

The plaintiff’s appealed the trial court’s decision.

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

The appellate court had a long discussion on the courts process to dismiss cases based on motions for summary judgment. The court then started into the analysis of the facts in this case and how they applied to the law.

Gross negligence in Utah is a failure on the part of the defendant to observe even slight care. “Under Utah law, “[g]ross negligence is the failure to observe even slight care; it is carelessness or recklessness to a degree that shows utter indifference to the consequences that may result.” The plaintiff to prove the defendant was grossly negligent must proof “conduct substantially more distant from the appropriate standard of care than does ordinary negligence.”

The facts argued by the plaintiff can then only be interpreted in one way for a court to determine gross negligence cannot be proved. However, even if there are different ways of viewing the facts, gross negligence claims can be beat if there is evidence the defendant did show care or was not lacking care.

However, appeals courts have affirmed grants of summary judgment on gross negligence claims where the undisputed evidence showed that the defendants took precautionary measures and did not ignore known and obvious risks.

In this case, the court could point out numerous instances where the defendant was not careless. “… the plaintiffs have fallen short of producing evidence upon which a jury could conclude that the defendants failed to exercise “even slight care” in organizing and administering this race.

The court also looked at the knowledge of the racers and the fact they assumed the risk of the sport and injuries they encountered.

Mountain bike racing is an inherently dangerous sport, so the defendants cannot be considered grossly negligent merely because they organized a race that placed the racers at risk of injury and even death. Rather, the court must look at the specific steps the defendants took to ensure the racers’ safety in order to determine whether a jury could decide that they
were grossly negligent.

Although the issue of assumption of the risk was reviewed by the court and it obviously factored into the court’s analysis, it was not stated by the court as a reason for its decision.

The plaintiff argued the driver’s statements showed the defendant not done anything. However, the court seemed to discount the driver’s statements and found everyone else did know about the race. A defendant in the case looking not to lose a lawsuit would be more inclined to state he had not been notified.

Mr. Konitshek claimed that the organizers’ efforts to warn people in the area of the upcoming race were ineffective, because he did not know about the race until moments before the accident. Mr. Konitshek’s complaints about the sufficiency of the race organizers’ warnings do not rise to the level of creating a material issue of fact with regard to gross
negligence for two reasons. First, even if the race organizers’ warnings were imperfect, that does not negate the fact that they made rather substantial efforts to warn people, and their failure to reach every person in the area is insufficient to show gross negligence. Second, although Mr. Konitshek testified that he would have changed his plans if he had known about the race in advance, the plaintiffs presented no reason for this court to think that most drivers would change their plans to avoid a bicycle race on a 6-mile stretch of open road.

Utah requires a high disregard of safety issues to constitute gross negligence. Since automobile accidents were rare in mountain bike racing, this being the only one in the ten years of running this event, automobile accidents were not considered a serious threat to the participants. The issues were brought up by the plaintiff’s expert witness whom the court dismissed in one paragraph.

Thus, the organizers’ failure to shut down the road, mark and enforce a center line on the road, more closely monitor vehicular traffic, or more thoroughly warn other area drivers of the upcoming race cannot, as a matter of law, amount to gross negligence in light of the other safety steps taken by the organizers of this race.

Nor is gross negligence proved by 20/20 hindsight.

An examination of cases in other jurisdictions shows that courts have been reluctant to find that race organizers have been grossly negligent for failing to take every precaution that 20/20 hind-sight might counsel.

The court found the plaintiff’s had not presented evidence that could prove to a jury that the race organizers were grossly negligent and the actions of the race organizers in attending to the safety issues discounted or eliminated the plaintiff’s gross negligence claim.

We therefore agree with the district court’s determination that the plaintiffs in this case have failed to provide evidence upon which a reasonable jury could conclude that the race organizers were grossly negligent.

The court then went on to support the trial courts exclusion of the plaintiff’s expert witness because the expert witness did not have sufficient experience in mountain bike racing. 

There was a concurring opinion in this case. A concurring opinion is one where a justice sitting on the appeal agrees with the outcome of the decision but for a different reason than the majority of the justices. In this case, the concurring judge felt the plaintiff’s expert witness statements were enough to beat the gross negligence claim.

In this case, he would have excluded the plaintiff’s expert witness testimony, but would have used his testimony where he stated the defendants exercised some degree of care for the participants as a reason to dismiss the gross negligence claim.

The dismissal of the claims of the plaintiff by the trial court was upheld.

So Now What?

I am seeing case after case where gross negligence claims are made to defeat a release. Twenty years ago, few cases pleaded a claim for gross negligence, and now every case does. As such part of your preparation for any activity, trip or program is to make sure you do not do anything that could support a gross negligence claim.

Gross negligence claims rarely proved at trial, extremely rare. As such their main reason they are pled is to get passed the motion for summary judgment, which increases the cost of continuing the case substantially. Therefore, any settlement offer will be increased significantly. A gross negligence claim hanging over the head of a defendant is also a real threat as some insurance companies will not pay to defend such a claim judgment based on gross negligence are not dischargeable in Bankruptcy.

Planning what safety precautions you should undertake should first start with understanding what your industry does. Know how other races are put on and what precaution to take is the first step. Then looking at your course, your participants or your ability to respond, you should modify the safety program to meet those differences. 

Finally, have a release and fully inform every one of the risks. Most importantly inform them of all risks, maybe even repeatedly, that are different from everyone else or that substantially increase the risk. Assumption of the Risk is the second most-used defense to negligence claims in recreation cases after a release. Always use both.

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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Milne v. USA Cycling Inc., et. al., 575 F.3d 1120; 2009 U.S. App. LEXIS 17822

Milne v. USA Cycling Inc., et. al., 575 F.3d 1120; 2009 U.S. App. LEXIS 17822

Robert J. Milne, an individual; Timothy K. Sorrow, individually and as personal representative on behalf of his deceased son, Samuel B. Hall, Plaintiffs-Appellants, v. USA Cycling Inc., a Colorado corporation, d/b/a National Off-road Bicycle Association; Cycle Cyndicate Inc., a Colorado Corporation; Eric Jean, an individual, Defendants-Appellees.

No. 07-4247

UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

575 F.3d 1120; 2009 U.S. App. LEXIS 17822

August 10, 2009, Filed

PRIOR HISTORY: [**1]

Appeal from the United States District Court for the District of Utah. (D.C. No. 2:05-CV-00675-TS).

Milne v. USA Cycling, Inc., 489 F. Supp. 2d 1283, 2007 U.S. Dist. LEXIS 42579 (D. Utah, 2007)

COUNSEL: Steve Russell (Jordan Kendall with him on the briefs) of Eisenberg & Gilchrist, Salt Lake City, Utah, for Plaintiffs-Appellants.

Allan L. Larson (Richard A. Vazquez with him on the briefs) of Snow, Christensen, & Martineau, Salt Lake City, Utah, for Defendants-Appellees.

JUDGES: Before McCONNELL, EBEL, and GORSUCH, Circuit Judges. GORSUCH, Circuit Judge, concurring in part and concurring in the judgment.

OPINION BY: EBEL

OPINION

[*1122] EBEL, Circuit Judge.

This diversity jurisdiction case involves Utah state law claims of negligence, gross negligence, and wrongful death based on a tragic accident that occurred during a bicycle race called the “Tour of Canyonlands” near Moab, Utah. During the race, one or more of the racers collided with an SUV and trailer driving in the opposite direction. One racer was killed, and another was badly injured. The injured rider and the decedent’s mother–in her own capacity and on behalf of her son’s estate–filed suit against the race’s organizers and the entities responsible for promoting and overseeing the race.

The district court granted defendants’ motion to strike plaintiffs’ expert’s second [**2] affidavit, and granted summary judgment for the defendants on all claims. On appeal, the plaintiffs only challenge the district court’s decision to exclude their expert’s opinion and to grant summary judgment for the defendants on the plaintiffs’ claims of gross negligence.

Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we AFFIRM.

I. BACKGROUND 1

1 Because this case comes to us on defendants’ motion for summary judgment, we construe all facts in plaintiffs’ favor. See Beardsley v. Farmland Co-Op, Inc., 530 F.3d 1309, 1313 (10th Cir. 2008) ( [HN1] “This court reviews the district court’s summary judgment decision de novo, viewing the evidence in the light most favorable to the non-moving party . . . .” (quoting Herrera v. Lufkin Indus., Inc., 474 F.3d 675, 679-80 (10th Cir. 2007)) (ellipses in original).

The “Tour of the Canyonlands” (“TOC”) is a cross-country mountain bike race [*1123] through the canyons outside Moab, Utah. The race begins on six miles of an “open course” dirt road, where racers share the road with automobile traffic, and continues for another nineteen miles on rugged off-road paths. On April 25, 2005, two racers–Samuel B. Hall and Robert J. Milne–were racing the TOC when they [**3] struck a Ford Excursion SUV, and the trailer it was pulling, on the six-mile open course portion of the race. Mr. Hall died at the scene from severe head trauma. Mr. Milne was seriously injured, but survived the accident.

Following the accident, Plaintiff-Appellant Timothy Sorrow brought negligence, gross negligence, and wrongful deaths claims personally and on behalf of the estate of her deceased son, Mr. Hall, against the people and entities responsible for organizing the race. Plaintiff-Appellant Robert J. Milne brought claims of negligence and gross negligence on his own behalf against the same defendants.

The three Defendants-Appellees were responsible for organizing, promoting, and overseeing the TOC race on April 25, 2005. U.S.A. Cycling Inc., d/b/a the National Off-Road Bicycle Association (“NORBA”), oversaw the race and drafted the rules governing the race, Cycle Cyndicate organized and promoted the race, and Eric Jean–the president and CEO of Cycle Cyndicate–played a large role in administering and supervising the race.

A. Open Course Mountain Bike Racing

Although a portion of this race took place on an open road, the race was governed exclusively by the mountain bike racing [**4] rules developed by NORBA. These rules differ significantly from road racing rules. For example, road racers must obey a “center-line rule,” and may be disqualified if they cross over the line painted in the middle of the road. Mountain bike racers, on the other hand, will not be disqualified for crossing the center-line. This distinction is based at least in part on the fact that, unlike the roads used for road racing, open-course mountain bike races often take place on dirt roads that do not have a clearly marked center line. Thus, a center-line rule would be difficult, if not impossible, to enforce.

Despite the fact that a mountain bike racer may not be disqualified for crossing the center line, there was evidence that the race organizers told the racers to obey a center-line rule. Even where no center-line rule is in effect, however, racers are expected to be aware of their surroundings, and to veer right if they see oncoming traffic.

Open-course bicycle races are apparently not uncommon in the mountain bike racing world and are especially common in Utah. Mr. Milne testified that about 25% of the mountain bike races he participated in were “open course” races. The TOC itself has taken [**5] place in part on an open course since at least 1998.

Automobile-bicycle accidents are very uncommon at TOC. Mr. Jean stated that throughout the more than ten-year history of the race, with races in many of those years having nearly 500 participants, he is aware of only one accident involving a bicyclist and an automobile–the accident that led to this case. Perhaps because of the low frequency of vehicular accidents, NORBA has no rules dictating that race organizers must regulate traffic on open-course trails to avoid automobile-bicycle [*1124] collisions. There was some evidence that, despite the fact that NORBA has no such requirement, Mr. Jean requested permission to close the road to traffic on the day of the race. Whether or not he made those efforts, it is clear that the permit obtained for the race stated that the race could not stop traffic for more than 15 minutes at a time. 2

2 The race organizers obtained a permit from the Bureau of Land Management (“BLM”) for [**6] the race. However, the record indicates that there was a conflict at the time between the BLM and some of the County governments regarding who had control over the roads in the area. This court expresses no opinion on that conflict.

B. The Racers

Both Mr. Hall and Mr. Milne were classified as “expert” racers, and had extensive mountain bike racing experience. They had raced the TOC before, and were familiar with the course. Before each of these races, they knowingly signed liability release forms, which provided that the parties had waived all claims against the race organizers, including claims premised on the organizers’ negligence. The releases also specifically mentioned that racers were assuming the risk of collision with vehicles. Those warnings, in combination with the race organizers’ pre-race announcements that the first six miles would be on an open course shared with other vehicles, make it clear that Mr. Hall and Mr. Milne knew they could encounter vehicles during their race.

C. Safety Precautions Taken by the Race Organizers

The race organizers took a number of safety precautions both before and during the race. For example, the race organizers posted a sign warning people [**7] in the area of the upcoming race, although that sign had been knocked down at least once during the week the leading up to the race.

On the day of the race, the organizers posted, about a mile and half from the starting line, some attendants whose job it was to warn drivers that a race was taking place, that they might encounter some temporary road closures, and that they would be sharing the road with hundreds of cyclists. Some race organizers also testified that they approached people camped in the area to warn them that a race would be taking place that day. Mr. Konitshek, the driver of the SUV involved in the accident, testified that no one ever came to his campground to warn of the race that morning, despite the fact that his campground was clearly visible from the road. However, the other members of his party testified that the race organizers warned them about the race as they drove away from their campground.

The race organizers also arranged for 25 “course marshals” to help supervise the race. Some of those marshals were posted near intersections or sharp turns in order to mitigate some of the risks associated with the automobile traffic the racers might encounter. However, [**8] no one was assigned to the area right near the accident site, which was relatively straight and wide. Further, even though some course marshals had been assigned to areas between the starting line and the place of the accident, some witnesses testified that they did not notice anyone directing traffic in that area. In addition to the course marshals, Mr. Jean had a few people available to administer first aid to injured riders. Mr. Jean himself also carried a backpack with some medical equipment.

Finally, the race organizers made significant efforts to inform the racers that they might encounter vehicles during the race. In order to ride, race participants had to sign a liability release waiver that specifically mentioned the potential for vehicular [*1125] accidents. Further, before the race began, the race organizers announced that the TOC was an open course race, and that racers might encounter automobile traffic.

D. The Accident

Mr. Konitshek was driving a 2001 Ford Excursion with a 30-foot trailer about five miles from the starting line when he noticed that a group of bikers were approaching his car from the opposite direction. The bikers were spread out too wide for their lane of travel. [**9] That portion of the road was relatively wide, open, and fast. The visibility there was also relatively good. Although the view was partially blocked by some rocks, Mr. Konitshek’s SUV and trailer were visible to racers from at least 150 feet away. Mr. Konitshek testified that, when he saw the oncoming bikers, he veered as far right in his lane of travel as possible, and remained on the right side of the road the entire time. 3 He was going about 5 miles per hour when one of the bikers hit his left sideview mirror, causing it to bang into his window and shatter.

3 There was conflicting evidence on whether Mr. Konitshek or the racers had crossed the center line of the road. Mr. Konitshek was adamant that he had remained on his side. However, one of the riders witnessing the accident testified that the riders remained on their side of the road, although he then recanted his testimony to some extent, stating that it was hard to tell whether the riders and/or the truck had remained on their respective sides of the road. Another rider testified at his deposition that he was certain that Mr. Konitshek’s SUV extended beyond the center line. Still another testified that the SUV certainly remained [**10] on its side of the road the entire time. For purposes of this appeal, we will assume the facts most favorable to Plaintiffs’ argument.

Casey Byrd, a rider who was just behind Mr. Hall and Mr. Milne when the accident occurred, testified that right before the accident, Mr. Hall had attempted to pass both himself and Mr. Milne. Mr. Byrd was immediately behind Mr. Milne, so Mr. Hall passed him first. Mr. Byrd testified that Mr. Hall passed very closely and, because of his proximity and his speed–Mr. Hall was riding about 25 miles per hour at that time–Mr. Casey could feel the wind coming off him as he passed. Then, as Mr. Hall began to pass Mr. Milne, their handlebars locked together, causing them to veer left and strike Mr. Konitshek’s camper. It is not entirely clear what happened next, but at least one racer testified that he saw the trailer run over Mr. Hall.

E. The District Court’s Decision

The district court granted summary judgment for the defendants on all claims. On the plaintiff’s gross negligence claims, the court determined that the undisputed facts showed that defendants had taken a number of steps to protect the racers’ safety, and even if those steps were taken negligently, [**11] they were not grossly negligent. The district court also struck plaintiffs’ expert’s second affidavit, finding that plaintiffs’ witness was not qualified to testify as an expert on mountain bike races. This appeal, challenging the district court’s grant of summary judgment on plaintiffs’ gross negligence claims and the court’s decision to strike plaintiffs’ expert, timely followed.

II. Discussion

A. Federal Law Dictates Summary Judgment Standard

Before turning to the facts of this case, this court must address whether Utah’s summary judgment rules preclude this court from upholding the district court’s grant of summary judgment. [HN2] Under federal law, a defendant may be granted summary judgment whenever plaintiffs fail adequately to “support one of the elements of [*1126] their claim upon which they ha[ve] the burden of proof.” Jensen v. Kimble, 1 F.3d 1073, 1079 (10th Cir. 1993).

[HN3] Utah’s approach to summary judgment is generally parallel to the federal courts’ approach. See, e.g., Burns v. Cannondale Bicycle Co., 876 P.2d 415, 418-20 (Utah Ct. App. 1994) (affirming summary judgment for defendants because plaintiff failed to bring evidence supporting one of the elements regarding which it had the burden [**12] of proof). However, Utah has a special rule for summary judgment in negligence cases that differs significantly from federal law. Under Utah law, “[s]ummary judgment in negligence cases, including gross negligence cases, is inappropriate unless the applicable standard of care is fixed by law.” Pearce v. Utah Athletic Foundation, 2008 UT 13, 179 P.3d 760, 767 (Utah 2008) (emphasis added) (internal quotation omitted). In other words, Utah courts would prevent either party to a negligence dispute from obtaining summary judgment where the standard of care applicable to that dispute has not been “fixed by law.” See Berry v. Greater Park City Co., 2007 UT 87, 171 P.3d 442, 449 (Utah 2007) (explaining that Utah courts will not grant summary judgment in a gross negligence case where the applicable standard of care has not been fixed by law because “[i]dentification of the proper standard of care is a necessary precondition to assessing the degree to which conduct deviates, if at all, from the standard of care–the core test in any claim of gross negligence”); but see RJW Media, Inc. v. CIT Group/Consumer Finance, Inc., 202 P.3d 291, 296, 2008 UT App 476 (Utah Ct. App. 2008) (affirming grant of summary judgment for defendant in a [**13] negligence case where the standard of care had not been “fixed by law” but the defendant had presented uncontested evidence of the appropriate standard of care).

In Pearce, 2008 UT 13, 179 P.3d 760, the most recent Utah Supreme Court case to consider this issue, the plaintiff brought gross negligence claims arising out of injuries that occurred during a bobsled ride. The Utah court reversed the lower court’s grant of summary judgment for the defendants, concluding that summary judgment was inappropriate because the applicable standard of care had not been “fixed by law.” The court held that the generally applicable “reasonably prudent person” standard was insufficiently specific to constitute a standard of care “fixed by law.” Id. at 768 n.2. Rather, for the standard of care in that case to be “fixed by law,” a statute or judicial precedent must articulate “specific standards for designing, constructing, and testing a bobsled run for the public or for operating a public bobsled ride.” Id.; see also Berry, 171 P.3d at 449 (denying motion for summary judgment in negligence case involving a skiercross course because the applicable standard of care was not “fixed by law”); Wycalis v. Guardian Title of Utah, 780 P.2d 821, 825 (Utah. Ct. App. 1989) [**14] (stating that “the applicable standard of care in a given case may be established, as a matter of law, by legislative enactment or prior judicial decision”). Since no statute or precedent provided a standard of care for bobsled rides, the Utah court denied the defendants’ motion for summary judgment. Pearce, 179 P.3d at 768.

Applying Utah law to this case would probably require that we reverse the district court’s grant of summary judgment. It is undisputed that no Utah precedent or legislative enactment specifically establishes the standard of care for running mixed-course bicycle races. Thus, under Utah law, the standard of care in this case is not “fixed by law,” and summary judgment would be inappropriate.

[HN4] Under federal law, on the other hand, a defendant need not establish that the standard of care specific to the factual [*1127] context of the case has been “fixed by law” in order to be granted summary judgment. See Gans v. Mundy, 762 F.2d 338, 342 (3rd Cir. 1985) (holding that defendant moving for summary judgment in a legal malpractice claim need not present expert testimony establishing a standard of care even though a plaintiff in that position would need to do so, because the case [**15] law establishing the plaintiff’s duty to provide expert testimony “cannot fairly be characterized as applying to a defendant’s motion under Rule 56″) (emphasis in original); see also id. at 343 (“[T]he party moving for summary judgment has the ultimate burden of showing the absence of a genuine issue as to any material fact. But once the appellees averred facts and alleged that their conduct was not negligent, a burden of production shifted to the appellant to proffer evidence that would create a genuine issue of material fact as to the standard of care.”) (citations omitted); see generally Young v. United Auto. Workers Labor Employment and Training Corp., 95 F.3d 992, 996 (10th Cir. 1996) (“A party who moves for summary judgment under Rule 56 is not required to provide evidence negating an opponent’s claim. Rather, the burden is on the nonmovant, who must present affirmative evidence in order to defeat a properly supported motion for summary judgment.”) (citations and quotations omitted).

On the contrary, [HN5] federal courts will sometimes grant summary judgment to defendants on negligence claims precisely because of the plaintiff’s failure to present evidence establishing a standard of [**16] care as part of its burden of proof on an element of plaintiff’s case. See, e.g., Briggs v. Washington Metro. Area Transit Auth., 481 F.3d 839, 841, 375 U.S. App. D.C. 343 (D.C. Cir. 2007) (affirming grant of summary judgment for defendants on a negligence claim where plaintiff, who under state law had the burden to provide expert testimony on the standard of care, failed to “offer creditable evidence sufficient to establish a controlling standard of care”); Keller v. Albright, 1 F. Supp. 2d 1279, 1281-82 (D. Utah 1997) (granting defendant’s motion for summary judgment on plaintiff’s legal malpractice claim asserted under Utah law because the plaintiff failed to provide expert testimony regarding the standard of care, and the case did not involve circumstances “within the common knowledge and experience of lay jurors”) (citation and quotation omitted), aff’d, No. 97-4205, 1998 U.S. App. LEXIS 7134, 1998 WL 163363 (10th Cir. Apr. 8, 1998) (unpublished) (affirming “for substantially those reasons set out in the district court’s [opinion]”). Thus, even when Utah substantive law was involved, the federal district court of Utah and the Tenth Circuit have held that the federal courts may grant a defendant summary judgment on a negligence [**17] claim even if the parameters of the standard of care in the relevant industry have not been previously established by precedent or statute. 4 See also Noel v. Martin, No. 00-1532, 21 Fed. Appx. 828, 836 *7 (10th Cir. Oct. 19, 2001) (unpublished) (upholding summary judgment for defendants in a legal malpractice case where the district court properly dismissed plaintiff’s only expert on the issue of the standard of care).

4 Admittedly, there is no indication in Keller v. Albright, 1 F. Supp. 2d 1279, that the plaintiff there argued that the Utah standard for granting summary judgment in a negligence claim should apply.

In Foster v. Alliedsignal, Inc., 293 F.3d 1187 (10th Cir. 2002), this court addressed a closely analogous set of facts involving a conflict between federal and state law standards for granting summary judgment. Foster involved a retaliatory discharge case brought pursuant to Kansas law. Id. at 1190-91. Under Kansas law, a plaintiff can prevail at trial if she establishes [*1128] her case with “clear and convincing evidence.” Id. at 1194 (internal quotation omitted). However, Kansas law provides that “a plaintiff in a retaliation case . . . . can successfully oppose a motion for summary [**18] judgment by a preponderance of the evidence.” Id. at 1194 (internal quotation and citation omitted). In Foster, this court rejected the plaintiff’s efforts to have that lower evidentiary standard apply at the summary judgment stage in federal court. Id. at 1194-95. Instead, this court held that the Supreme Court’s opinion in Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986), [HN6] required that courts “view the evidence through the prism of the substantive evidentiary burden.” Id. at 254; see also Silkwood v. Kerr-McGee Corp., 769 F.2d 1451, 1454-55 (10th Cir. 1985) (stating, in the context of a motion for judgment notwithstanding the verdict, that “the question of the sufficiency of the evidence needed to go to the jury in a diversity case is a matter of federal law”); Bank of Cali., N.A. v. Opie, 663 F.2d 977, 979 (9th Cir. 1981) (“[F]ederal law alone governs whether evidence is sufficient to raise a question for the trier-of-fact.”). Applying that standard to the case before it, this court in Foster held that, at summary judgment, the plaintiff “must set forth evidence of a clear and convincing nature that, if believed by the ultimate factfinder, would establish that plaintiff was [**19] more likely than not the victim of illegal retaliation by her employer.” Foster, 293 F.3d at 1195. See also Conrad v. Bd. of Johnson County Comm’rs, 237 F. Supp. 2d 1204, 1266-67 (D. Kan. 2002) (holding that, for state law retaliatory discharge claims, the “clear and convincing standard is applied at the summary judgment stage–at least when the claim is brought in a federal court sitting in diversity”). Thus, although the state law dictated that a plaintiff alleging retaliatory discharge could avoid summary judgment under a preponderance of the evidence standard, [HN7] federal law required that the substantive standard applied at trial (i.e., clear and convincing evidence) governs summary judgment determinations. See Hanna v. Plumer, 380 U.S. 460, 85 S. Ct. 1136, 14 L. Ed. 2d 8 (1965); McEwen v. Delta Air Lines, Inc., 919 F.2d 58, 60 (7th Cir. 1990) (“Federal courts may grant summary judgment under Rule 56 on concluding that no reasonable jury could return a verdict for the party opposing the motion, even if the state would require the judge to submit an identical case to the jury.”); 10A Charles Alan Wright, Arthur R. Miller, and Mary Kay Kane, Federal Practice and Procedure § 2712 (3d ed. 1998) (“[I]n diversity-of-citizenship [**20] actions questions relating to the availability of summary judgment, such as whether there is a disputed issue of fact that is sufficient to defeat the motion, are procedural and therefore governed by Rule 56, rather than by state law.”).

The circumstances of this case are very similar to what we addressed in Foster. Like the evidentiary rule in Foster, [HN8] Utah’s rule foreclosing summary judgment in cases where the standard of care has not been fixed by law applies exclusively at summary judgment. This is clear because Utah law provides that, at trial, the plaintiff has the burden of demonstrating the appropriate standard of care. See Webb v. Univ. of Utah, 2005 UT 80, 125 P.3d 906, 909 (Utah 2005) (“To establish a claim of negligence, the plaintiff must establish . . . that the defendant owed the plaintiff a duty [and] that the defendant breached that duty . . . .”) (citations and quotations omitted); Sohm v. Dixie Eye Ctr., 166 P.3d 614, 619, 2007 UT App 235 (Utah Ct. App. 2007) (“To sustain a medical malpractice action, a plaintiff must demonstrate . . . the standard of care by which the [physician’s] conduct is to be measured . . . .” (quoting Jensen v. IHC Hosps., Inc., [*1129] 2003 UT 51, 82 P.3d 1076, 1095-96 (Utah 2003)) (alteration [**21] in original)); see also Model Utah Jury Instructions, Second Edition, CV301B (2009), http://www.utcourts.gov/resources/muji/ (stating that “to establish medical malpractice” a plaintiff “has the burden of proving,” inter alia, “what the standard of care is”); id. at CV302 (putting the same burden of proof on a plaintiff attempting to prove nursing negligence). By allowing the plaintiff to avoid summary judgment in cases where the standard of care has not been fixed by law, Utah has created a rule very similar to Kansas’s rule allowing plaintiffs to avoid summary judgment under a lesser standard of proof than they would carry at trial. We are, therefore, bound to treat Utah’s unique summary judgment rule in the same way that we treated the rule in Foster, and conclude that, although we will look to Utah law to determine what elements the plaintiffs must prove at trial to prevail on their claims, see Oja v. Howmedica, Inc., 111 F.3d 782, 792 (10th Cir. 1997) (stating that “in a diversity action we examine the evidence in terms of the underlying burden of proof as dictated by state law”), we will look exclusively to federal law to determine whether plaintiffs have provided enough evidence [**22] on each of those elements to withstand summary judgment. 5 As we discuss in the following section, this approach leads us to concur with the district court’s decision granting summary judgment for the defendants.

5 Even if the defendants have some burden to establish that the race was run in accordance with the standard of care in order to be granted summary judgment, they have met that burden controlling. The defendants put on evidence from a number of experienced biking participants that this race was carefully run in accordance with the standard of care they have come to expect in mountain-bike races. Once the testimony of plaintiffs’ expert Sean Collinsworth is excluded, as we hold later was appropriate, plaintiffs put on no conflicting evidence from any witness qualified to articulate a proper standard of care for a mountain bike race. Further, under Utah law, it would probably be unnecessary for defendants to present expert testimony to establish compliance with the standard of care in this case. Compare Collins v. Utah State Dev. Ctr., 992 P.2d 492, 494-95, 1999 UT App 336 (Utah Ct. App. 1999) (holding that expert testimony was not necessary in case involving claim that a center working with the [**23] developmentally disabled was negligent for allowing a resident to ride a swing without any safety devices designed to ensure that she would not fall off), and Schreiter v. Wasatch Manor, Inc., 871 P.2d 570, 574-75 (Utah Ct. App. 1994) (holding that expert testimony was not necessary in a case involving allegations that a senior living center was negligent for failing to install a fire sprinkler system), with Macintosh v. Staker Paving and Const. Co., 2009 UT App 96, 2009 WL 953712, *1 (Utah Ct. App. 2009) (unpublished) (holding that expert testimony was needed to establish the standard of care in a case involving traffic control at a construction site because of the complex rules governing traffic control in that context); see generally Preston & Chambers, P.C. v. Koller, 943 P.2d 260, 263 (Utah Ct. App. 1997) (“Expert testimony is required where the average person has little understanding of the duties owed by particular trades or professions, as in cases involving medical doctors, architects, and engineers.”) (citations and quotations omitted). In any event, plaintiffs have cited no law establishing that Utah would require an expert in this case, and have not addressed this question in their [**24] briefs, so this issue is not before us on appeal. Thus, even if the defendants have the burden at summary judgment to establish that there is no genuine dispute of fact that their conduct satisfied the applicable standard of care, we hold that on this summary judgment record, defendants satisfied that burden.

B. Plaintiffs Failed to Provide Evidence of Gross Negligence

1. Standard of Review

[HN9] “This court reviews the district court’s summary judgment decision de novo, viewing the evidence in the light most favorable to the non-moving party . . . .” Beardsley v. Farmland Co-Op, Inc., 530 F.3d 1309, 1313 (10th Cir. 2008) (quoting Herrera v. Lufkin Indus., Inc., 474 F.3d 675, 679-80 [*1130] (10th Cir. 2007)) (ellipses in original). “Summary judgment is appropriate if the record evidence shows there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Praseuth v. Rubbermaid, Inc., 406 F.3d 1245, 1255 (10th Cir. 2005) (citing Fed. R. Civ. P. 56(c)). This court will grant summary judgment for a defendant if the plaintiff fails adequately “to support one of the elements of their claim upon which they ha[ve] the burden of proof.” Jensen, 1 F.3d at 1079. [**25] A plaintiff “cannot avoid summary judgment merely by presenting a scintilla of evidence to support her claim; she must proffer facts such that a reasonable jury could find in her favor.” Turner v. Public Serv. Co. of Colo., 563 F.3d 1136, 1142 (10th Cir. 2009) (citation omitted).

2. Analysis

The parties agree that, under Utah law, the liability releases signed by Mr. Milne and Mr. Hall preclude the plaintiffs from bringing ordinary negligence claims against the defendants. See Pearce, 179 P.3d at 765 (stating that [HN10] “people may contract away their rights to recover in tort for damages caused by the ordinary negligence of others”); see also id. at 766 (holding that “recreational activities do not constitute a public interest and that, therefore, preinjury releases for recreational activities cannot be invalidated under the public interest exception”). However, the plaintiffs argue–and, on appeal, the defendants do not contest–that, under Utah law, a liability release will not prevent a plaintiff from bringing claims of gross negligence. Cf. Hawkins ex rel. Hawkins v. Peart, 2001 UT 94, 37 P.3d 1062, 1065 (Utah 2001) (stating in dicta that a liability release “is always invalid if it applies to harm [**26] wilfully inflicted or caused by gross or wanton negligence”) (quoting 6A Arthur L. Corbin, Corbin on Contracts, § 1472, at 596-97 (1962)). Thus, the only merits issue raised on appeal is whether plaintiffs have offered enough evidence in support of their claims of gross negligence to withstand a motion for summary judgment. 6

6 Aside from her negligence and gross negligence claims, Plaintiff Sorrow also brought wrongful death claims relating to Mr. Hall’s death. However, the appellants have not adequately addressed those claims on appeal, so they will be deemed to have been waived. See United States v. Abdenbi, 361 F.3d 1282, 1289 (10th Cir. 2004) ( [HN11] “The failure to raise an issue in an opening brief waives that issue.”).

[HN12] Under Utah law, “[g]ross negligence is the failure to observe even slight care; it is carelessness or recklessness to a degree that shows utter indifference to the consequences that may result.” Moon Lake Elec. Ass’n, Inc. v. Ultrasystems W. Constructors, Inc., 767 P.2d 125, 129 (Utah Ct. App. 1988) (quoting Atkin Wright & Miles v. Mountain States Tel. & Tel. Co., 709 P.2d 330, 335 (Utah 1985)) (emphasis added); see also Pearce, 179 P.3d at 767 (same). Thus, “the task [**27] confronting a plaintiff who claims injury due to a defendant’s gross negligence is markedly greater than that of a plaintiff who traces his injury to ordinary negligence. Gross negligence requires proof of conduct substantially more distant from the appropriate standard of care than does ordinary negligence.” Berry, 171 P.3d at 449.

[HN13] “Whether an actor’s conduct constitutes negligence is generally a factual question left to a jury. The question should only be answered by the court in rare cases where the evidence is susceptible to only one possible inference.” Roberts v. Printup, 422 F.3d 1211, 1218 (10th Cir. 2005) (citations and quotations omitted). However, appeals courts have affirmed grants of summary judgment on gross negligence claims where the undisputed evidence showed that the defendants [*1131] took precautionary measures and did not ignore known and obvious risks. Cf. Milligan v. Big Valley Corp., 754 P.2d 1063, 1069 (Wyo. 1988) (affirming summary judgment for defendants on “willful and wanton misconduct” claim, holding that the defendants “did not act in utter disregard of” plaintiffs’ safety in organizing a ski race where the race organizers had taken a number of safety precautions, [**28] plaintiffs presented no evidence that there was a preexisting requirement to take additional precautions, and the racers had been notified in advance of the dangers of the race); Santho v. Boy Scouts of Am., 168 Ohio App. 3d 27, 2006 Ohio 3656, 857 N.E.2d 1255, 1262-63 (Ohio Ct. App. 2006) (affirming directed verdict on claim of recklessness arising from an ice skating race in part because race organizers took some safety precautions and there was no evidence that organizer had knowingly disregarded any specific dangers or contravened any industry standards).

Moon Lake Elec. Ass’n, Inc., 767 P.2d at 129. In this case, the plaintiffs have fallen short of producing evidence upon which a jury could conclude that the defendants failed to exercise “even slight care” in organizing and administering this race.

Mountain bike racing is an inherently dangerous sport, so the defendants cannot be considered grossly negligent merely because they organized a race that placed the racers at risk of injury and even death. Rather, the court must look at the specific steps the defendants took to ensure the racers’ safety in order to determine whether a jury could decide that they were grossly negligent.

As discussed above, the undisputed evidence [**29] shows that the race organizers took a number of steps to warn of, and protect against, the risk of an automobile accident during the race. The race organizers posted a sign warning people in the area of the upcoming race, posted attendants near the starting line to warn drivers about the race taking place that day, and approached people camped in the area to warn them that the road would be clogged with bikers that morning.

The race organizers also provided 25 course marshals, some of which were assigned to areas like intersections and sharp turns specifically because of the unique risks of automobile traffic in those areas. No one was assigned to the area right near the accident, but that choice was not grossly negligent in light of the fact that the stretch of road where the accident occurred was relatively straight and wide. The race organizers also had some first aid personnel standing by, in addition to Mr. Jean, who carried a backpack with some medical supplies.

Finally, the racers were warned–both in writing and verbally–that they might encounter traffic during the race. The racers’ decision to compete on a course that they knew they would be sharing with automobiles strongly [**30] undercuts their ability to claim after the fact that it was grossly negligent for the race organizers to conduct an open course race. Cf. Walton v. Oz Bicycle Club of Wichita, No. 90-1597-K, 1991 U.S. Dist. LEXIS 17655, 1991 WL 257088, *4 (D. Kan. Nov. 22, 1991) (granting defendants summary judgment on negligence claim arising from plaintiff striking an automobile during a bicycle race organized by the defendants in part because “the fact that the course was open to normal traffic was explicitly made known to the participants”).

Mr. Konitshek claimed that the organizers’ efforts to warn people in the area of the upcoming race were ineffective, because he did not know about the race until moments before the accident. Mr. Konitshek’s complaints about the sufficiency of the race organizers’ warnings do not rise to the level of creating a material issue of [*1132] fact with regard to gross negligence for two reasons. First, even if the race organizers’ warnings were imperfect, that does not negate the fact that they made rather substantial efforts to warn people, and their failure to reach every person in the area is insufficient to show gross negligence. Second, although Mr. Konitshek testified that he would have changed [**31] his plans if he had known about the race in advance, the plaintiffs presented no reason for this court to think that most drivers would change their plans to avoid a bicycle race on a 6-mile stretch of open road.

[HN14] Utah requires a very high level of disregard for safety in order to constitute gross negligence. See Pearce, 179 P.3d at 767; Atkin Wright & Miles, 709 P.2d at 335; Moon Lake Elec. Ass’n, Inc., 767 P.2d at 129. The undisputed steps that defendants took to enhance the safety of the TOC would prevent any reasonable juror from finding gross negligence under Utah substantive law. Many of the precautions discussed above were specifically designed to prevent accidents with automobiles. Further, there was no evidence that automobile accidents posed a particularly serious risk in this case. On the contrary, the race had been conducted on an open course for over a decade, and this is the first instance of an accident involving a racer and a vehicle. Thus, the organizers’ failure to shut down the road, mark and enforce a center line on the road, more closely monitor vehicular traffic, or more thoroughly warn other area drivers of the upcoming race cannot, as a matter of law, amount to [**32] gross negligence in light of the other safety steps taken by the organizers of this race. Cf. Holzer v. Dakota Speedway, Inc., 2000 SD 65, 610 N.W.2d 787, 793-94 (S.D. 2000) (affirming summary judgment for defendants on reckless conduct claim relating to harm caused to a pit crew member during an automobile race in part because the allegedly reckless conduct that led to the harm in that case had been present during races for three years prior to this accident, and had never before caused anyone any harm).

An examination of cases in other jurisdictions shows that [HN15] courts have been reluctant to find that race organizers have been grossly negligent for failing to take every precaution that 20/20 hindsight might counsel. See Milligan, 754 P.2d at 1069 (affirming summary judgment for defendants on “willful and wanton misconduct” claim arising out of a ski race where the race organizers had taken a number of safety precautions, plaintiffs presented no evidence that there was a preexisting requirement to take additional precautions, and the racers had been notified in advance of the dangers of the race); Santho, 857 N.E.2d at 1262-63 (affirming directed verdict on claim of recklessness arising from an [**33] ice skating race in part because race organizers took some safety precautions and there was no evidence that organizer had knowingly disregarded any specific dangers or contravened any industry standards); Holzer, 610 N.W.2d at 793-94 (affirming summary judgment for defendants on reckless conduct claim relating to harm caused to a pit crew member during an automobile race in part because plaintiff failed to show that, at the time of the accident, the defendants “knew or had reason to know of an unreasonable risk of harm” to the defendant); Walton, 1991 U.S. Dist. LEXIS 17655, 1991 WL 257088 at *4 (granting defendants summary judgment on negligence claim arising from plaintiff striking an automobile during a bicycle race organized by the defendants in part because “the fact that the course was open to normal traffic was explicitly made known to the participants”).

We therefore agree with the district court’s determination that the plaintiffs in this case have failed to provide evidence upon which a reasonable jury could conclude [*1133] that the race organizers were grossly negligent. 7 See Turner, 563 F.3d at 1142 (stating that, [HN16] to avoid summary judgment, a plaintiff “must proffer facts such that a reasonable jury could [**34] find in her favor”).

7 Because we decide this case on the grounds that plaintiffs have failed to present evidence of gross negligence, we do not reach the defendants’ separate argument that, even if they were grossly negligent, their negligence could not have proximately caused the harms complained of in this case.

C. District Court did not Abuse its Discretion by Excluding Plaintiffs’ Expert

1. Standard of Review

[HN17] “Like other evidentiary rulings, [the court] review[s] a district court’s decision to exclude evidence at the summary judgment stage for abuse of discretion.” Sports Racing Servs. v. Sports Car Club of Am.., 131 F.3d 874, 894 (10th Cir. 1997) (citations omitted). “[A] district court abuses its discretion when it renders an arbitrary, capricious, whimsical, or manifestly unreasonable judgment.” Atlantic Richfield Co. v. Farm Credit Bank of Wichita, 226 F.3d 1138, 1163 (10th Cir. 2000) (citations and quotations omitted).

[HN18] When testing the admissibility of expert testimony, courts must first determine whether an expert is “qualified by ‘knowledge, skill, experience, training, or education’ to render an opinion.” Ralston v. Smith & Nephew Richards, Inc., 275 F.3d 965, 969 (10th Cir. 2001) [**35] (quoting Fed. R. Evid. 702). Second, if the court determines that a witness is qualified, it must then “determine whether her opinions [a]re ‘reliable.'” Id.

The district court struck the second affidavit of plaintiffs’ expert Sean Collinsworth, concluding that he was “not sufficiently qualified to render expert testimony on the applicable standards of care for mountain bike racing, particularly regarding the TOC[, and] that any such testimony would be speculative and not sufficiently reliable . . . .” (Appx. at 9.)

2. Analysis

Plaintiffs rely heavily on their expert’s testimony to support their claim that the race organizers were grossly negligent. However, plaintiffs’ expert, Sean Collinsworth, admittedly had no experience in organizing, supervising, or studying mountain bike races and, therefore, was not qualified to offer expert testimony on the standard of care for mountain bike races. At his deposition, Mr. Collinsworth was asked, “As a matter of fact–just so we’re clear, you’re not an expert on mountain bike racing . . . Is that a fair statement?” (Appx. at 641.) He answered, “Yes, it is.” (Id.) Nor was he even an experienced mountain bike rider. He had only participated in one [**36] or two mountain bike races, and those were more than 15 years ago. He had never published any articles about bicycle racing of any sort, let alone mountain bike racing. He testified that, as a police officer, he investigated hundreds of vehicle-bicycle collisions, but there was no indication that any of those took place on a dirt road or in the course of a race.

Although Mr. Collinsworth had experience organizing and supervising paved road bike races, the district court reasonably concluded that his experience was insufficient to qualify him to testify about mountain bike races. The facts of this case make it clear that the rules and practices that prevail at mountain bike races–even the on-the-road portion of mountain bike races–are different from the rules and practices that prevail at traditional road races. Most importantly, road racers are always required to obey a center-line [*1134] rule, while mountain bikers racing on dirt roads will generally cross the center-line when there is no oncoming traffic, but are expected to veer right if they see any traffic approaching. Furthermore, the conditions of a road race on paved streets with clearly marked center lines differ significantly from [**37] the conditions of the open-course portion of the TOC, which took place on a dirt road with no clearly marked center line. Given the differences between road races and mountain bike races, we conclude that the district court’s finding that Mr. Collinsworth was unqualified to offer expert testimony on the standard of care for mountain bike races was not “arbitrary, capricious, whimsical, or manifestly unreasonable.” Atlantic Richfield Co., 226 F.3d at 1163; cf. Ralston, 275 F.3d at 970-71 (upholding district court’s determination that a board certified orthopaedic surgeon was not qualified to testify about an orthopaedic device that she had never worked with or studied); Bertotti v. Charlotte Motor Speedway, Inc., 893 F. Supp. 565, 569-70 (W.D.N.C. 1995) (striking expert testimony regarding design of go-kart track where expert had experience in automobile racing, but not go-kart racing).

Even if Mr. Collinsworth was qualified to offer an expert opinion on the standard of care for mountain bike races, the district court correctly determined that his testimony in this case was unreliable. [HN19] “To determine whether an expert opinion is admissible, the district court performs a two-step analysis. [**38] First, the court must determine whether the expert is qualified by ‘knowledge, skill, experience, training, or education’ to render an opinion. See Fed. R. Evid. 702. Second, if the expert is sufficiently qualified, the court must determine whether the expert’s opinion is reliable . . . .” 103 Investors I, L.P. v. Square D Co., 470 F.3d 985, 990 (10th Cir. 2006). “In reviewing whether an expert’s testimony is reliable, the trial court must assess the reasoning and methodology underlying the expert’s opinion.” United States v. Rodriguez-Felix, 450 F.3d 1117, 1123 (10th Cir. 2006) (citations and quotations omitted). Mr. Collinsworth’s opinions in this case were not based on a study of other similar races, an analysis of precautionary measures used in mountain bike races and the risks and benefits of such measures, or any other empirical or quantitative studies. Instead, he relied almost exclusively on his experience in paved road racing–experience that the district court reasonably determined was inapplicable to the context of mountain bike racing–to form his conclusions about the standard of care that should have been used in this case. Mr. Collinsworth’s conclusions about the safety [**39] precautions that should have been taken in this case are, therefore, mere speculation, and [HN20] “[i]t is axiomatic that an expert, no matter how good his credentials, is not permitted to speculate.” Goebel v. Denver and Rio Grande Western R.R. Co., 215 F.3d 1083, 1088 (10th Cir. 2000). Without their expert’s testimony, the plaintiffs’ claims fall apart. See Bertotti, 893 F. Supp. at 570 (granting summary judgment for defendants on plaintiffs’ claim that defendants were grossly negligent in designing and maintaining a go-kart track where the only evidence plaintiffs provided in support of their claims of gross negligence was inadmissible expert testimony). 8

8 The district court’s holding on this matter was limited to Mr. Collinsworth’s second affidavit because the defendants did not also move to strike plaintiffs’ expert’s initial report or his deposition testimony. However, the district court’s ruling clearly indicated that it would not allow this expert to testify as an expert on any of the issues in this case. Therefore, we do not consider either of Mr. Collinsworth’s affidavits or his deposition testimony in deciding the merits of plaintiffs’ claims.

[*1135] III. Conclusion

For the foregoing reasons, [**40] we AFFIRM the district court’s decisions to strike the plaintiff’s expert’s second affidavit and to grant summary judgment for the defendants.

CONCUR BY: GORSUCH (In Part)

CONCUR

GORSUCH, Circuit Judge, concurring in part and concurring in the judgment.

I join all but Section II.C of Judge Ebel’s fine opinion. That section concerns the admissibility of testimony by the plaintiffs’ expert, Sean Collinsworth. The majority upholds the district court’s decision to exclude Mr. Collinsworth’s testimony on the ground that he wasn’t an expert in the relevant field. I have my doubts. Mr. Collinsworth may not be a professional mountain bike racer, but he does have substantial experience in organizing and conducting traffic control operations for bicycle racing and similar events — and the adequacy of the defendants’ traffic control operations lie at the heart of this case.

Still, I would affirm the district court’s exclusion of Mr. Collinsworth for a different reason. The only question in this case is gross negligence — namely, whether defendants took any precautions against the accident that took place. See, e.g., Pearce v. Utah Athletic Found., 2008 UT 13, 179 P.3d 760, 767 (Utah 2008) (Gross negligence is “the failure to [**41] observe even slight care; it is carelessness or recklessness to a degree that shows utter indifference to the consequences that may result.”) (emphasis added); cf. Berry v. Greater Park City Co., 2007 UT 87, 171 P.3d 442, 449 (Utah 2007) (“Gross negligence requires proof of conduct substantially more distant from the appropriate standard of care than does ordinary negligence.”). Mr. Collinsworth’s proffered testimony faults the sufficiency of the defendants’ precautions, but doesn’t dispute that the defendants did exercise some degree of care, however slight, in preparing for and managing this race. His testimony, thus, might well have been relevant to a negligence claim, but it doesn’t illuminate the plaintiffs’ gross negligence claim. And a district court is not obliged to entertain evidence, expert or otherwise, irrelevant to the claims before it. See Fed. R. Evid. 402 (“Evidence which is not relevant is not admissible.”). With this minor caveat, I am pleased to join.