Lawsuit because a ski helmet failed to protect a plaintiff from concussion.

Is this, the beginning of an avalanche of lawsuits for concussions from people wearing helmets?

Rogers v. K2 Sports, LLC, 2018 U.S. Dist. LEIS 217233

State: Wisconsin: United States District Court for the Western District of Wisconsin

Plaintiff: Steven Scott Rogers, by his guardian, Tracy Rogers, Tracy Rogers, Samba Health Benefit Plan, Blue Cross Blue Shield of Wisconsin, and State of Wisconsin Department of Health Services

Defendant: K2 Sports, LLC, Lexington Insurance Company, and AIG Europe Limited

Plaintiff Claims: negligence, strict product liability, and breach of warranty

Defendant Defenses:

Holding: Mostly for the Plaintiff

Year: 2018

Summary

This appears to be the first lawsuit over a ski helmet not protecting the skier from a brain injury. This is just a motion hearing. However, it provides some insight into the claims and defenses that will spring up in the future if people continue to believe that human-powered recreation helmets are going to protect against concussions and fatal head injuries.

Facts

Scott wore a K2 Phase 08 helmet while skiing with his stepson Coby at the Afton Alps Ski Area in Washington County, Minnesota, on New Year’s Eve 2015. Around 8:40 p.m., Scott and Coby skied down a beginner’s run called Nancy’s Nursery. Scott fell about halfway down the hill near some small mounds called “rollers.” Coby was in front of Scott and did not witness the fall. Another skier did witness the fall, but he was not able to recall any details about it, except that the fall did not seem unusual.

The fall left Scott unconscious and bleeding from his left ear. Scott was taken by ambulance to a hospital, where doctors conducted tests including a CT scan of Scott’s head. The accident caused brain hemorrhages and fractured Scott’s skull, left clavicle, and numerous ribs along Scott’s left side. As a result of permanent brain damage caused by the accident, Scott now lives at a VA hospital where he receives round-the-clock care.

The K2 helmet was certified as compliant with the standards of ASTM International, which is an organization that develops and [*4] publishes technical standards for a wide range of products.2 Compliance with ASTM standards is voluntary. The K2 helmet has three layers. The exterior layer is a hard-plastic shell. The shell is lined with an Expanded Polystyrene (EPS) energy-attenuating layer, which is supposed to absorb and dissipate shock from a blow to the head. The third layer is a comfort liner that can be adjusted to fit on the user’s head. After Scott’s accident, the lower left rear of the exterior shell was cracked. And, in the same area, the shock-absorbing EPS layer was flattened, and chunks of the EPS were missing.

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

This was a motion’s decision. A Motion for summary judgment was filed by the defendant who was denied and motions to exclude witnesses, expert witness testimony, etc., which were denied in part and granted in part for both parties.

The main issue is, it is a lawsuit against the manufacturer of a human-powered recreation helmet manufacturer for a concussion.

The motions covered a broad range of topics; this discussion will look at the important points from an outdoor recreation perspective.

The court started by looking at the Wisconsin Product Liability statute.

Wisconsin product liability law is codified under Wisconsin Statute § 895.047.5 A product liability claim has five elements: (1) the product was defective; (2) the defect rendered the product unreasonably dangerous; (3) the defect existed when the product left the control of the manufacturer; (4) the product reached the consumer without substantial change; and (5) the defect caused the claimant’s damages.

The substantial change requirement is interesting. That reasoning provides a defense for the manufacturer if the retailer makes modifications to the helmet for a sale. At the same time, it is how all people in the chain of custody of a product are held liable for a product liability claim. Any of the people in the chain of custody, manufacture, distributor, retailers could have identified the defect and prevented the defective product from reaching the consumer.

Generally, product liability claims are one of three types: “design defects, manufacturing defects, and warning defects.”

Design defects are levied when the product is designed badly from the beginning. Although there are a lot of design defect claims, there are rarely judgments based on design because most manufacturers understand safety issues.

One area that does pop up in design defects is when a product is used differently from what it was originally designed. If the manufacturer leans about the misuse of the product, then the manufacturer may be held liable for injuries due to the misuse of the product.

Manufacturing defects are simply a failure of quality control. Although in this day, you would think, manufacturing defects would be rare, they occur constantly. A manufacturing defect is usually the reason for a recall of a product.

The final defect, warning defects, are the easiest and toughest at the same time. Making sure the information on how to use a product and any warnings on how not to use the product are critical. At the same time, it is difficult for manufacture to envision how their product could be used and all the risks from those different uses.

As an example, when I’m design manuals and warnings, I want the product. After I have examined it thoroughly and tried every possible way to use it improperly, I ask someone who has no understanding of the product to use it. A sixteen-year-old kid can do amazing things that no one ever envisioned with some products.

Many times, a product liability lawsuit will include a negligence claim. Here the court compared the issues of proving a product negligence claim and a product liability claim.

Plaintiffs also bring a claim for negligence. To sustain this claim, plaintiffs must prove (1) the existence of a duty of care on the part of the defendant, (2) a breach of that duty of care, (3) a causal connection between the defendant’s breach of the duty of care and the plaintiff’s injury, and (4) actual loss or damage resulting from the injury. In Wisconsin, a manufacturer’s duty of care includes the duty to safely design the product so it is fit for its intended purpose, and the duty to conduct adequate inspections and tests to determine the extent of defects.

The bold issue is another point you rarely know about. Your duty to design is just step one. Step two is you must test your product to make sure that it meets the intended purpose and the limits of your design. You design a product to do something. Once manufactured you must test the product initially and sometimes ongoing to make sure it still does what you say it will within the parameters you say it will operate.

This duty to test is increased if the duty arises from labeling or marketing. If you say the product contains X ounces of Sample or only breaks under loads greater than XX pounds you have to make sure each of your products meets that test.

The issue in ski helmets is not what the manufacturer says it can or cannot do. The issue is what the consumer believes the product will do. The consumer/plaintiff believes the ski helmet is designed to protect against a concussion, where, in reality; the design is just to slightly minimize the injury potential.

In this case, the plaintiff was claiming the helmet was defective. The plaintiff had to prove:

…a product is defective in design if the “foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design by the manufacturer, and the omission of the alternative design renders the product not reasonably safe.”

The helmet manufacturer, K2 brought up the fact that the helmet met the ASTM standards for ski helmets. That standard required the helmet to “keep the user’s head from accelerating more than 300 g, meaning that the force of impact on the skull is equivalent to 300 times the force of gravity or less.” If you look at that standard, it is minimal.

However, the ASTM helmet is not a 100% defense to a claim. It only shifts the burden to the plaintiff to prove the helmet was defective, more so since all helmet standards are voluntary.

The ASTM standards may be relevant, but they are not dispositive. If the ASTM standards were adopted by federal or state law, then K2 would be entitled to a rebuttable presumption that the helmet was not defective. Wis. Stat. § 895.047(3)(c). But the ASTM standards are only voluntary. Compliance with voluntary standards at the time of manufacturing may be evidence that K2 behaved reasonably, in defense of plaintiffs’ negligence claim.

Voluntary standards, which most standards are identified as, are really only a sword and not a shield. If you don’t meet a standard, then it is proof you don’t care, and you had a cheap product. Failing to meet a standard is better in the plaintiff’s hands to proof you were bad, rather than in the defendant’s hands as a shield.

Under Wisconsin law, the court set forth the issues needed to prove a defect based on inadequate warnings on the product or provided to the consumer.

Under Wisconsin’s product liability statute, a product is defective because of inadequate instructions or warnings if “foreseeable risks of harm posed by the product could have been reduced or avoided by the provision of reasonable instructions or warnings by the manufacturer and the omission of the instructions or warnings renders the product not reasonably safe.” Wis. Stat. § 895.047(1)(a). Plaintiffs do not need to show that Scott actually read the instructions to prove causation. When a product is missing an adequate warning, the missing warning is a substantial factor in causing injury if a reasonable person would have heeded the warning and as a result avoided injury. There is a presumption that any missing instructions would have been read, and therefore a presumption of causation.

Here again, warnings are another weak shield for the defendant and a better sword for the plaintiff in litigation. Warnings show you tried to inform the consumer, or you told the consumer not to do something and they consumer did it anyway. The lack of a warning is a major sword to the plaintiff who can show the jury the lack of care and concern on the part of the manufacturer that should have and could have warned the consumer of the risk.

You can see the difference in the value of some arguments between the plaintiff and the defendant. If the defendant had the warning, it really does not matter except to hope you can argue it was written in a way that the consumer had to have seen it. If the manufacturer fails to have a warning, then the presumption is the consumer would have read the warning and not been hurt. But for the failure to have a warning, there would be no injury. If you are a manufacturer believing that since you have met the standards you are safe, you are soon to be renamed “Defendant.”

Even the voluntary part of the term “voluntary standard” can come back to haunt a manufacturer. If the manufacturer decides not to meet the standard, it is easy for the plaintiff’s attorney to argue the manufacturer did not meet the standard to save money, or because they did not care about their customers. Consequently, once a standard is created, voluntary or not, every manufacturer must meet the standard.

Worse, any standard then restricts research and development because of the fear of not meeting the standard and looking bad in court.

The motion did not look at the issues, we would like some clarification or the facts. What happened to cause the head injury that turned the plaintiff into a vegetable and more importantly, what did the plaintiff believe when they purchased the helmet.

So Now What?

The decision had a few interesting points. However, the greatest issue is the floodgates are now probably open for head injuries that occur to skiers and other recreationists while wearing a helmet. It will be interesting to see how this decision progresses through the courts and whether the issues of the amount of protections afforded versus the expectations of the consumer becomes an issue.

As the decision states. Ski helmets have limited ability to protect. The ASTM standard quoted in the decision requires the helmet to meet a simple test.

Under the ASTM standards, a helmet must keep the user’s head from accelerating more than 300 g, meaning that the force of impact on the skull is equivalent to 300 times the force of gravity or less.

Human-powered recreation helmets, ski, bike, rollerblading, scooters, etc., only protect against minor scalp injuries, nothing more. If the NFL cannot protect football players with helmets costing thousands of dollars why to you think the piece of plastic you paid $100 is going to protect you from a concussion.

More articles about helmets

A helmet manufacture understands the issues (Uvex, Mouthguards)    http://rec-law.us/xpxX6n

A new idea that makes sense in helmets: the Bern Hard Hat    http://rec-law.us/yPerOd

Are we using safety as an excuse not to spend time with people? Is here, “wear your helmet” taking the place of let me show you how to ride a bike?    http://rec-law.us/1fqwlpV

Do you really want to sell helmets this way? Does this article promote the industry?    http://rec-law.us/NfoMTs

Does being safe make us stupid? Studies say yes.    http://rec-law.us/Ao5BBD

Great article on why helmet laws are stupid    http://rec-law.us/zeOaNH

Great editorial questioning why we need laws to “protect” us from ourselves.    http://rec-law.us/Ayswbo

Helmets do not increase risk of a neck injury when skiing    http://rec-law.us/wPOUiM

Helmets: why cycling, skiing, skateboarding helmets don’t work    http://rec-law.us/RVsgkV

Law requires helmets, injuries down fatalities up?    http://rec-law.us/YwLcea

Mixed emotions, but a lot of I told you so.    http://rec-law.us/ysnWY2

More information over the debate about ski helmets: Ski Helmets ineffective crashes were the wear is going faster than 12 miles per hour    http://rec-law.us/z4CLkE

The helmet issue is so contentious people will say the stupidest things    http://rec-law.us/zhare9

What do you think? Leave a comment.

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Langlois v. Nova River Runners, Inc., 2018 Alas. LEXIS 31

Langlois v. Nova River Runners, Inc., 2018 Alas. LEXIS 31

Vanessa L. Langlois, Personal Representative of the Estate of Stephen J. Morton, Appellant, v. Nova River Runners, Inc., Appellee.

Supreme Court No. S-16422, No. 1669

Supreme Court of Alaska

2018 Alas. LEXIS 31

March 21, 2018, Decided

NOTICE: MEMORANDUM DECISIONS OF THIS COURT DO NOT CREATE LEGAL PRECEDENT. SEE ALASKA APPELLATE GUIDELINES FOR PUBLICATION OF SUPREME COURT DECISIONS. ACCORDINGLY, THIS MEMORANDUM DECISION MAY NOT BE CITED FOR ANY PROPOSITION OF LAW, NOR AS AN EXAMPLE OF THE PROPER RESOLUTION OF ANY ISSUE.

PRIOR HISTORY: [*1] Appeal from the Superior Court of the State of Alaska, Third Judicial District, Anchorage, Pamela Scott Washington, Judge pro tem. Superior Court No. 3AN-15-06866 CI.

CASE SUMMARY

OVERVIEW: HOLDINGS: [1]-A release entitled defendant rafting company to wrongful

COUNSEL: Mara E. Michaletz and David K. Gross, Birch Horton Bittner & Cherot, Anchorage, for Appellant.

Howard A. Lazar, Scott J. Gerlach, and Luba K. Bartnitskaia, Delaney Wiles, Inc., Anchorage, for Appellee.

JUDGES: Before: Stowers, Chief Justice, Winfree, Maassen, Bolger, and Carney, Justices. Winfree, Justice, with whom Carney, Justice, joins, dissenting.

OPINION

MEMORANDUM OPINION AND JUDGMENT*

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* Entered under Alaska Appellate Rule 214.

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I. INTRODUCTION

The estate of a man who drowned on a rafting trip challenged the validity of the pre-trip liability release. The superior court granted summary judgment in favor of the rafting company. Because there were no genuine issues of material fact and the release was effective under our precedent, we affirm.

II. FACTS AND PROCEEDINGS

In May 2013 Stephen Morton took part in a whitewater rafting trip on Six Mile Creek near Hope. The trip was conducted by NOVA River Runners (NOVA). This case arises out of Morton’s tragic death by drowning after his raft capsized.

A. The Release

Before embarking on a rafting trip, participants typically receive and sign [*2] NOVA’s liability release (the Release). The Release is provided as a single two-sided document. One side is entitled “Participant’s Acknowledgment of Risks” and begins with a definition of activities: “any adventure, sport or activity associated with the outdoors and/or wilderness and the use or presence of watercraft, including but not limited to kayaks, rafts, oar boats and glacier hiking and ice climbing equipment, including crampons, ski poles, climbing harnesses and associated ice climbing hardware.” The Release then states:

Although the concessionaire has taken reasonable steps to provide you with appropriate equipment and/or skilled guides so you can enjoy an activity for which you may not be skilled, we wish to remind you this activity is not without risk. Certain risks cannot be eliminated without destroying the unique character of the activity.

The Release then provides a list of “some, but not all” of the “inherent risks,” including “[m]y . . . ability to swim . . . and/or follow instructions” and “[l]oss of control of the craft, collision, capsizing, and sinking of the craft, which can result in wetness, injury, . . . and/or drowning.” The Release next asks participants to [*3] affirm that they possess certain qualifications, including physical capability and safety awareness. The last section of the first side purports to waive liability for the negligent acts of NOVA and its employees. There is no designated space for signatures or initials on this side.

At the top of the other side, participants are asked to acknowledge that “[They] have read, understood, and accepted the terms and conditions stated herein” and that the agreement “shall be binding upon [the participant] . . . and [their] estate.” No terms or conditions appear on this side. There are then three signature blocks where up to three participants can sign, with space to include an emergency contact, allergies, and medications.

Brad Cosgrove, NOVA’s “river manager” for this trip, did not recall whether Morton read the Release before signing it, but stated that “[n]obody was rushed into signing” and that he “physically showed each participant” both sides of the Release. Bernd Horsman, who rafted with Morton that day, stated that he recalled “sign[ing] a document that briefly stated that you waive any liability in case something happens” but thought the document only had one side. He did not recall [*4] “someone physically show[ing]” the Release to him, but he wasn’t rushed into signing it. Both Horsman’s and Morton’s signatures appear on the Release.

B. The Rafting Trip

The rafting trip consisted of three canyons. NOVA would routinely give participants the opportunity to disembark after the second canyon, because the third canyon is the most difficult. Morton did not choose to disembark after the second canyon, and his raft capsized in the third canyon. Cosgrove was able to pull him from the river and attempted to resuscitate him. NOVA contacted emergency services and delivered Morton for further care, but he died shortly thereafter.

C. Legal Proceedings

Morton’s widow, Vanessa Langlois, brought suit as the personal representative of Morton’s estate (the Estate) in May 2015 under AS 09.55.580 (wrongful death) and AS 09.55.570 (survival), requesting compensatory damages, plus costs, fees, and interest. The Estate alleged that NOVA was negligent and listed multiple theories primarily based on the employees’ actions or omissions.

NOVA moved for summary judgment in November 2015, arguing that the Release barred the Estate’s claims. NOVA supported its position with the signed Release and affidavits from NOVA’s owner [*5] and Cosgrove. The Estate opposed and filed a cross-motion for summary judgment to preclude NOVA from relying on the Release. The parties then stipulated to stay formal discovery until the court had ruled on these motions but agreed on procedures for conducting discovery in the interim if needed. Pursuant to the stipulation, the parties deposed Horsman and filed supplemental briefing.

In June 2016 the superior court granted NOVA’s motion for summary judgment and denied the Estate’s, reasoning that the Release was valid under our precedent. This appeal followed. The Estate argues that the superior court erred in granting summary judgment because the Release did not satisfy the six elements of our test for a valid waiver.

III. STANDARD OF REVIEW

“We review grants of summary judgment de novo, determining whether the record presents any genuine issues of material fact.”1 “If the record fails to reveal a genuine factual dispute and the moving party was entitled to judgment as a matter of law, the trial court’s grant of summary judgment must be affirmed.”2 “Questions of contract interpretation are questions of law that we review de novo . . . .”3

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1 Donahue v. Ledgends, Inc., 331 P.3d 342, 346 (Alaska 2014) (citing Hill v. Giani, 296 P.3d 14, 20 (Alaska 2013)).2 Id. (citing Kelly v. Municipality of Anchorage, 270 P.3d 801, 803 (Alaska 2012)).3 Sengul v. CMS Franklin, Inc., 265 P.3d 320, 324 (Alaska 2011) (citing Norville v. Carr-Gottstein Foods Co., 84 P.3d 996, 1000 n.1 (Alaska 2004)).

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IV. DISCUSSION

Alaska Statute 09.65.290 provides that “[a] person who [*6] participates in a sports or recreational activity assumes the inherent risks in that sports or recreational activity and is legally responsible for . . . death to the person . . . that results from the inherent risks in that sports or recreational activity.” The statute does not apply, however, to “a civil action based on the . . . negligence of a provider if the negligence was the proximate cause of the . . . death.”4 Thus, in order to avoid liability for negligence, recreational companies must supplement the statutory scheme by having participants release them from liability through waivers.

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4 AS 09.65.290(c).

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Extrapolating from principles articulated in three earlier cases,5 we recently adopted, in Donahue v. Ledgends, Inc., a six-element test for finding effective waiver:

(1) the risk being waived must be specifically and clearly set forth (e.g. death, bodily injury, and property damage); (2) a waiver of negligence must be specifically set forth using the word “negligence”; (3) these factors must be brought home to the releasor in clear, emphasized language . . . ; (4) the release must not violate public policy; (5) if a release seeks to exculpate a defendant from liability for acts of negligence unrelated [*7] to inherent risks, the release must suggest an intent to do so; and (6) the release agreement must not represent or insinuate standards of safety or maintenance.6

The Estate argues that NOVA’s release does not satisfy this test. We analyze these six elements in turn and conclude that NOVA’s Release is effective.7

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5 See Donahue, 331 P.3d at 346-48 (discussing Ledgends, Inc. v. Kerr, 91 P.3d 960 (Alaska 2004); Moore v. Hartley Motors, Inc., 36 P.3d 628 (Alaska 2001); and Kissick v. Schmierer, 816 P.2d 188 (Alaska 1991)).6 Id. at 348. In Donahue, a woman sued a rock climbing gym after she broke her tibia by falling a few feet onto a mat at the instruction of an employee, and we concluded that the release barred her negligence claim. Id. at 344-45.7 Our review of the record reveals no genuine issues of material fact with respect to the existence and terms of the Release.

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A. The Release Specifically And Clearly Sets Forth The Risk Being Waived.

The Estate first argues that the Release was not a “conspicuous and unequivocal statement of the risk waived” because the Release was two-sided and the sides did not appear to incorporate each other.8 For support, the Estate cites an “analogous” Uniform Commercial Code (UCC) case from Florida for the proposition that “a disclaimer is likely inconspicuous where ‘there is nothing on the face of the writing to call attention to the back of the instrument.'”9 The Estate points out that the release in Donahue had two separate pages, and the participant initialed the first page and signed the second.10 The Estate also identifies Horsman’s confusion about whether the Release had one or two sides as evidence that the Release was not conspicuous, raising possible issues of material fact about whether Morton [*8] would have been aware of the other side or whether Cosgrove actually showed each participant both sides.11

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8 See Donahue, 331 P.3d at 348.9 The Estate quotes Rudy’s Glass Constr. Co. v. E. F. Johnson Co., 404 So. 2d 1087, 1089 (Fla. Dist. App. 1981) (citing Massey-Ferguson, Inc. v. Utley, 439 S.W.2d 57 (Ky. 1969); Hunt v. Perkins Mach. Co., 352 Mass. 535, 226 N.E.2d 228 (Mass. 1967)).10 See Donahue, 331 P.3d at 345.11 The Estate raises these arguments outside the context of Donahue, but we address them here.

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We note that Participants in a recreational activity need not read a release for it to be binding if the language of the release is available to them.12 We conclude that NOVA’s Release was sufficiently clear, even without an initial block on the first side. The signature page stated, “I have read, understood, and accepted the terms and conditions stated herein,” but no terms and conditions appeared on this side. A reasonable person, after reading the word “herein,” would be on notice that the document had another side.

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12 See Donahue, 331 P.3d at 349 (citing Lauvetz v. Alaska Sales & Serv., 828 P.2d 162, 164-65 (Alaska 1991)).

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The Estate also argues that NOVA’s Release “does not specifically and clearly set forth the risk that the NOVA instructors may have been negligently trained or supervised, or that they may give inadequate warning or instructions.” But NOVA’s Release, like the release in Donahue, “clearly and repeatedly disclosed the risk of the specific injury at issue”13 — here, death by drowning. Like the plaintiff in Donahue, the Estate, “[r]ather than focusing on [the] injury[,] . . . focuses on its alleged cause,”14 i.e., negligent training or instruction. But the [*9] Release covers this risk as well; it indemnifies the “Releasees” in capital letters from liability for injury or death, “whether arising from negligence of the Releasees or otherwise,” and specifically defines “Releasees” to include “employees.” In Donahue, we also observed that “[i]t would not be reasonable to conclude that [the defendant] sought a release only of those claims against it that did not involve the acts or omissions of any of its employees.”15 Thus, the Estate’s argument that NOVA’s Release “does not specifically and clearly set forth the risk that the NOVA instructors may have been negligently trained or supervised” is not persuasive.

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13 Id. at 348.14 Id. at 349.15 Id.

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B. The Release Uses The Word “Negligence.”

Donahue provides that “a waiver of negligence must be specifically set forth using the word ‘negligence.'”16 The Estate argues that the Release’s “references to negligence are inconsistent,” and therefore it does not fulfill our requirement that a release be “clear, explicit[,] and comprehensible in each of its essential details.”17 But we concluded in Donahue that similar language satisfied this element.

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16 Id. at 348.17 Kissick v. Schmierer, 816 P.2d 188, 191 (Alaska 1991) (quoting Ferrell v. S. Nev. Off-Road Enthusiasts, Ltd., 147 Cal. App. 3d 309, 195 Cal. Rptr. 90, 95 (Cal. App. 1983)).

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The release in Donahue provided: “I hereby voluntarily release, forever discharge, and agree to [*10] indemnify and hold harmless the [defendant] from any and all claims, demands, or causes of action, . . . including any such claims which allege negligent acts or omissions of [the defendant].”18 We emphasized that “[t]he phrase ‘any and all claims’ is thus expressly defined to include claims for negligence.”19

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18 Donahue, 331 P.3d at 345.19 Id. at 349.

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Here, the Release reads, in relevant part:

I . . . HEREBY RELEASE NOVA . . . WITH RESPECT TO ANY AND ALL INJURY, DISABILITY, DEATH, or loss, or damage to persons or property incident to my involvement or participation in these programs, WHETHER ARISING FROM NEGLIGENCE OF THE RELEASEES OR OTHERWISE, to the fullest extent permitted by law.

I . . . HEREBY INDEMNIFY AND HOLD HARMLESS all the above Releasees from any and all liabilities incident to my involvement or participation in these programs, EVEN IF ARISING FROM THEIR NEGLIGENCE to the fullest extent permitted by law.

NOVA’s Release uses the word “negligence” twice, and there is no material difference between the “any and all claims” language used in Donahue and the “any and all liabilities” language used here. We therefore conclude that the Release specifically set forth a waiver of negligence.

C. The Release Uses Simple Language And [*11] Emphasized Text.

Donahue provides that The intent of a release to waive liability for negligence “must be brought home to the releasor in clear, emphasized language.”20 The Estate argues that the Release fails to use clear language or adequately define the “activity” it covered and thus does not waive liability for negligence. This argument does not withstand the application of Donahue.

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20 Id. at 348.

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In Donahue, the clauses addressing negligence “[did] not appear to be ‘calculated to conceal'” and were “in a logical place where they [could not] be missed by someone who reads the release.”21 Here, the Release uses capital letters to highlight the clauses waiving negligence. Though the clauses fall near the bottom of the page, they were certainly “in a logical place where they [could not] be missed by someone who reads the release” from start to finish, and thus under Donahue they were not “calculated to conceal.” And though these clauses contain some legalese, ” releases should be read ‘as a whole’ in order to decide whether they ‘clearly notify the prospective releasor . . . of the effect of signing the agreement.'”22 The list of inherent risks uses very simple language: “cold weather,” “[m]y sense of balance,” [*12] “drowning,” “[a]ccidents or illnesses,” and “[f]atigue, chill and/or dizziness.”

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21 Id. at 350.22 Id. at 351 (quoting Kissick, 816 P.2d at 191).

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The Release extends to other activities such as “glacier hiking and ice climbing,” but any ambiguity is cleared up by the explicit list of inherent risks relating to whitewater rafting. We therefore conclude that the Release brings home to the reader its intent to waive liability for negligence using simple language and emphasized text.

D. The Release Does Not Violate Public Policy.

Donahue requires that “the release must not violate public policy.”23 Citing no legal authority, the Estate asserts that NOVA’s waiver “unquestionably violates public policy due to its vast scope.”

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23 Id. at 348.

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“Alaska recognizes that recreational releases from liability for negligence are not void as a matter of public policy, because to hold otherwise would impose unreasonable burdens on businesses whose patrons want to engage in high-risk physical activities.”24 In evaluating public policy arguments in the context of liability waivers, we have previously considered “[o]f particular relevance . . . the type of service performed and whether the party seeking exculpation has a decisive advantage in bargaining strength because of the essential nature [*13] of the service.”25 The type of service likely to inspire additional scrutiny on public policy grounds is “a service of great importance to the public, which is often a matter of practical necessity for some members of the public.'”26 Using this analysis, we deemed an all-terrain vehicle safety course “not an essential service,” meaning that “the class providers did not have a ‘decisive advantage of bargaining strength’ in requiring the release for participation in the class.”27

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24 Id. at 348 n.34 (citing Kissick, 816 P.2d at 191).25 Moore v. Hartley Motors, Inc., 36 P.3d 628, 631 (Alaska 2001) (citing Municipality of Anchorage v. Locker, 723 P.2d 1261, 1265 (Alaska 1986)).26 Id. (quoting Locker, 723 P.2d at 1265).27 Id. at 631-32 (citing Locker, 723 P.2d at 1265).

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Similarly, here, whitewater rafting, far from being a matter of practical necessity, is an optional activity, meaning that under Moore v. Hartley Motors, Inc., NOVA did not have an advantage in bargaining strength. We therefore conclude that the Release does not violate public policy.

E. The Release Suggests An Intent To Exculpate NOVA From Liability For Employee Negligence.

Donahue provides that “if a release seeks to exculpate a defendant from liability for acts of negligence unrelated to inherent risks, the release must suggest an intent to do so.”28 But regardless of whether acts of negligence are related to inherent risks, this requirement is met when “the injury and its alleged causes are all expressly covered [*14] in the release.”29 The Estate argues that the Release does not suggest an intent to exculpate NOVA from liability for employee negligence. We disagree.

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28 Donahue, 331 P.3d at 348.29 Id. at 352.

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As we have explained, the Release specifically covered employee negligence by including “employees” in the clause releasing NOVA from liability for negligence. Because the injury — death by drowning — and its alleged cause — employee negligence — are expressly included in the Release, it satisfies this Donahue element.30

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30 We further observe that the Release’s list of inherent risks tracks some of the Estate’s allegations about employee negligence. For example, the Estate alleged that NOVA “fail[ed] to preclude those participants who were not qualified to handle the rafting trip,” but the Release discloses that a participant’s “ability to swim . . . and/or follow instructions” was an inherent risk of the trip.

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The Estate correctly notes that the Donahue release specifically covered the risk of “inadequate warnings or instructions” from employees, unlike the general reference to employee negligence here.31 Ideally NOVA’s Release would include a more detailed description of the types of negligence it covers, such as “employee negligence” and “negligent training.” But doing so is not a requirement under Donahue. We therefore conclude that the Release suggests an intent to exculpate NOVA from liability for acts of employee negligence.32

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31 Donahue, 331 P.3d at 352.32 We therefore do not reach the question whether employee negligence is unrelated to inherent risks of guided whitewater rafting. See id. at 348.

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F. The Release Does Not Represent Or Insinuate Standards Of Safety Or Maintenance.

Donahue provides that “the release agreement must not represent or insinuate standards of safety or maintenance.”33 The [*15] Estate argues that the Release violates this element with the following statement: “the concessionaire has taken reasonable steps to provide you with appropriate equipment and/or skilled guides so you can enjoy an activity for which you may not be skilled.” But this statement is introduced by the word “[a]lthough” and falls within the same sentence as the disclosure that “this activity is not without risk.” This sentence is immediately followed by a sentence indicating that “[c]ertain risks cannot be eliminated without destroying the unique character of the activity.” And the Release goes on to list 11 risks inherent in whitewater rafting. Reading the Release as a whole, we cannot conclude that it represented or insinuated standards of safety or maintenance.

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33 Id.

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We noted that the release in Donahue “highlight[ed] the fallibility of [the defendant’s] employees, equipment, and facilities.”34 Here, though the Release does not — and was not required to under the Donahue elements — go that far, it does list as inherent risks “[l]oss of control of the craft” and “sinking of the craft,” raising the possibility of human error, fallible equipment, and adverse forces of nature. The Release also [*16] makes various references to the isolated, outdoor nature of the activity — listing “[c]hanging water flow,” “inclement weather,” and the “remote” location as inherent risks.

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34 Id. at 352.

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The Estate cites Ledgends, Inc. v. Kerr35 in support of its argument that the Release impermissibly both represents a standard of maintenance and tries to disclaim liability for failing to adhere to it. In Kerr, we concluded that a release that contained statements such as “[w]hile we try to make the [premises] safe” and “[w]hile we strive to provide appropriate equipment for people of all abilities and to keep the equipment in good condition” was invalid because, read as a whole, it did “not conspicuously and unequivocally alert” participants of its scope.36 We went on to hold that “[t]he representations in the release regarding the [defendant]’s own efforts toward safety suggest that the release was predicated on a presumption that the [defendant] would strive to meet the standards of maintenance and safety mentioned in the release.”37

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35 91 P.3d 960 (Alaska 2004). Like Donahue, Kerr also arose out of an injury at an indoor rock climbing gym. Id. at 961.36 Id. at 963-64.37 Id. at 963.

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But the Release in question here is dissimilar in key ways. Compared to the release in Kerr, which contained language representing safety standards throughout,38 NOVA’s Release [*17] contains only a single half-sentence to that effect, adequately disclaimed: “Although the concessionaire has taken reasonable steps to provide you with appropriate equipment and/or skilled guides so you can enjoy an activity for which you may not be skilled, this activity is not without risk. Certain risks cannot be eliminated without destroying the unique character of the activity.” And the release in Kerr was much broader — promising to “try to make the [premises] safe” — than NOVA’s Release, which promises merely that the company takes “reasonable steps to provide . . . appropriate equipment and/or skilled guides” while acknowledging in context that these precautions could not mitigate all the risks posed by a whitewater rafting trip. The Estate’s reliance on Kerr is thus misplaced, and we conclude that the Release does not represent or insinuate standards of safety or maintenance.

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38 Id. at 963-64.

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Because it satisfies the six Donahue elements, the Release effectively waived NOVA’s liability for negligence.

V. CONCLUSION

For the reasons explained above, we AFFIRM the superior court’s grant of summary judgment in favor of NOVA.

DISSENT BY: WINFREE

DISSENT

WINFREE, Justice, with whom CARNEY, Justice, joins, dissenting.

I respectfully [*18] dissent from the court’s decision affirming summary judgment in this case. I cannot agree with the court’s conclusions that the self-titled “Participant’s Acknowledgement [sic] of Risks”1 form actually is something other than what it calls itself — i.e., a “Release” form — and that it constitutes a valid release barring the Morton estate’s claims against NOVA River Runners.2 I would reverse the superior court’s decision, hold that the purported release is not valid under our precedent, and remand for further proceedings.

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1 The document is referred to by its title throughout, but the spelling has been changed to conform to our preferred style.2 The Participant’s Acknowledgment of Risks form signed by Stephen Morton is Appendix A to this dissent.

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The court’s application of the six factors we approved in Donahue v. Ledgends, Inc.3 ignores our prior case law from which these factors derived. Most salient to the factual situation and document at issue here is Ledgends, Inc. v. Kerr, affirming a superior court decision denying summary judgment based on a release document — titled “Release of Liability — Waiver of Claims” — that was far clearer, and certainly not less clear, than the purported release in this case.4 And although our prior cases about recreational releases have not focused on a document’s title, a title alerts a reader to the document’s purpose. In each case from which the Donahue factors derived, the [*19] document’s title clearly told the signer that the document was a release or that the signer was waiving legal claims. The release in Donahue was titled “Participant Release of Liability, Waiver of Claims, Assumption of Risks, and Indemnity Agreement — Alaska Rock Gym.”5 In Kerr the form was a “Release of Liability — Waiver of Claims.”6 The rider-safety school in Moore v. Hartley Motors, Inc. presented the participant a form that instructed “You Must Read and Sign This Consent Form and Release.”7 Only in Kissick v. Schmierer did the title of the document not contain the word “release,” but that form, provided by the U.S. Air Force, was a “Covenant Not to Sue and Indemnity Agreement”8 — a title giving notice that the signer was surrendering legal rights before participating in the activity. In contrast, an “Acknowledgment of Risks” in no way alerts a reader of the possibility of waiving all negligence related to an activity. A title indicating that a document will release or waive legal liability surely is a useful starting point for evaluating the validity of a recreational release.

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3 331 P.3d 342, 348 (Alaska 2014).4 91 P.3d 960, 961 (Alaska 2004). The release language in Kerr was included as an appendix to our opinion. Id. at 963-64. The rejected release from Kerr is Appendix B to this dissent for ease of comparison with the purported release in this case.5 331 P.3d at 344.6 91 P.3d at 961.7 36 P.3d 628, 632 (Alaska 2001).8 816 P.2d 188, 190 (Alaska 1991).

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Consistent with the principle that the purpose of contract interpretation is to give effect to the [*20] parties’ reasonable expectations,9 our prior cases require us to consider the agreement as a whole10 and to resolve “any ambiguities in pre-recreational exculpatory clauses . . . against the party seeking exculpation.”11 The agreement as a whole “must ‘clearly notify the prospective releasor or indemnitor of the effect of signing the release.'”12 Applying these directives to the Acknowledgment of Risks form, I conclude the document does not clearly apprise participants that they are surrendering all claims for negligence by NOVA, particularly claims based on inadequate training.

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9 See Peterson v. Wirum, 625 P.2d 866, 872 n.10 (Alaska 1981). A release is a type of contract. See Moore, 36 P.3d at 630-31.10 Kerr, 91 P.3d at 962.11 Id. at 961 (citing Kissick, 816 P.2d at 191).12 Id. at 962 (quoting Kissick, 816 P.2d at 191).

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As can be seen in Appendix A, the Acknowledgment of Risks form’s first indication that it might be anything more than what its title suggests appears approximately three-fourths of the way down a densely printed page that, up to that point, has mentioned only “inherent risks.” There the form asks participants for a self-evaluation of their abilities. After a line break, the form asks participants to certify that they are “fully capable of participating in these activities” and will “assume full responsibility for [themselves].” Then, without another line break or any heading to signify that the form is transitioning [*21] into a liability release rather than an acknowledgment of risks, the document sets out “release” language. While parts of this section are in capital letters, they are not in bold or otherwise set off from the dense text surrounding them. In short, considering the document as a whole, the apparent intent is to hide the release language at the very bottom of a dense, one-page document with a title completely unrelated to release of liability.

Additionally, the signature page in no way alerts the reader that operative release language is contained on another page, presumably the back side of that page. The short paragraph at the top, which the court relies on to hold that the form gave participants adequate notice of the release language, says only, “I have read, understood, and accepted the terms and conditions stated herein and acknowledge that this agreement shall be binding upon myself . . . .” While the court concludes that a reasonable person “would be on notice that the document had another side” solely because of the word “herein,” the court fails to explain its conclusion. In fact, Morton’s companion who was an experienced adventure traveler as well, Horsman, remembered the document [*22] consisting of only one page. As he put it, “[T]he way I read it is ‘conditions herein.’ Well, there’s not much herein . . . .”

In addition to the document’s overall structure, the Acknowledgment of Risks form fails to comply with several standards we previously have applied to recreational activity releases. Specifically, the mere inclusion of the word “negligence” in the release language is insufficient to make the Acknowledgment of Risks form a full release of all claims. The release we held invalid in Kerr also used the word “negligence,” but we agreed with the superior court that “[w]hen read as a whole” the purported release did “not clearly and unequivocally express an intent to release the Gym for liability for its own future negligence” with respect to all matters referenced in the release.13

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13 Id. at 963.

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The superior court’s Kerr decision, which we adopted and published as expressing our own view, highlighted the ineffectiveness of a release that did not “clearly alert climbers that they [were] giving up any claims that the Gym failed to meet the standards of maintenance and safety that the Gym specifically indicate[d] in the release that it [would] strive to achieve and upon which the release [*23] [might] have been predicated.”14 This is precisely what the Morton estate agues here: the Acknowledgment of Risks form promised participants that NOVA would provide adequately skilled guides but did not alert participants that they were giving up claims based on NOVA’s negligent failure to provide adequately skilled guides.

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14 Id.

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NOVA indicated in its Acknowledgment of Risks form that it had “taken reasonable steps to provide [a participant] with appropriate equipment and/or skilled guides so [the participant] can enjoy an activity for which [he] may not be skilled.” This is a representation that NOVA’s guides were adequately skilled to provide participants an enjoyable trip — not one fraught with danger.15 The Morton estate alleged in its complaint that NOVA’s guides were inadequately trained and did not properly screen participants to preclude those who were unable “to handle the rafting trip” from participating. Both specific allegations related to negligent training or failure to provide guides who were adequately skilled to assist unskilled participants to safely complete the trip. The Acknowledgment of Risks form, like the defective release in Kerr, can hardly be said to give a participants [*24] notice that the participants were surrendering claims related to negligent training or supervision.16

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15 The release could be read as requiring NOVA to provide either “appropriate equipment” or “skilled guides” but not both. But a reasonable person with no skill in rafting would almost certainly infer that NOVA intended to provide both appropriate equipment and skilled guides on a trip with Class V rapids.16 See Kerr, 91 P.3d at 963 (holding that release did not bar negligent maintenance claim because release promised to “strive to achieve” safety standards).

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The court concludes otherwise because the express statement that NOVA would provide skilled guides is in a sentence that also says rafting “is not without risk” and the Acknowledgment of Risks form then lists several inherent risks of rafting. But none of the listed risks is in any way related to unskilled guides or negligence in screening other participants.17 To the contrary, the enumerated risks focus on environmental and personal factors and include natural conditions, such as “[c]hanging water flow,” “presence of marine life,” and adverse weather; personal characteristics of the participant like “sense of balance, physical coordination, ability to swim, walk and/or follow instructions” and “[f]atigue, chill and/or dizziness, which may diminish [the participant’s] reaction time and increase the risk of accident”; and the risk of an accident “occurring in remote places where there are no available medical facilities.” The Acknowledgment of Risks form does not include — as the release in Donahue did — risks related to other participants’ “limits”18 or to employees’ “inadequate warnings [*25] or instructions” that might lead to injury.19 In other words, the Acknowledgment of Risks form did not meet the fourth characteristic of a valid release — it did not suggest an intent to release NOVA from liability for negligent acts unrelated to inherent risks.20

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17 In contrast, the valid release we discussed in Donahue explicitly listed in the inherent risks of climbing several types of possible negligence: “improperly maintained equipment,” “displaced pads or safety equipment, belay or anchor or harness failure,” “the negligence of other climbers or spotters or visitors or participants who may be present,” “participants giving or following inappropriate ‘Beta’ or climbing advice or move sequences,” and “others’ failure to follow the rules of the [Rock Gym] . . . .” Donahue v. Ledgends, Inc., 331 P.3d 342, 350 n.46 (Alaska 2014) (alteration in original).18 Id.19 See id. at 352 (holding that release at issue “expressly covered” both the type of injury “and its alleged causes,” namely “‘inadequate warnings or instructions’ from Rock Gym instructors”).20 The court states that it “do[es] not reach the question of whether employee negligence is unrelated to inherent risks of guided whitewater rafting.” It is hard to see how negligent training or providing inadequately skilled guides would ever be related to an inherent risk of guided whitewater rafting.

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I also disagree with the court’s holding that a release is necessarily valid when it sets out the risk of a specific injury — death by drowning in this case — but not its specific cause — negligent training and the provision of unskilled guides. In Donahue we rejected the participant’s argument that the release did not specifically and clearly set out the risks being waived because the release not only warned of a risk of falling but also cautioned that instructors and other employees could, through their negligence, cause falls or other types of injury.21 Here the only mention of employee negligence, buried at the bottom of a densely written, single-spaced document, is a description only in the most general terms. This type of general waiver simply does not specifically and clearly set out a waiver of the risk on which the Morton estate’s claim is based. The Morton estate alleges that [*26] Morton’s death by drowning was not due solely to the inherent risks of whitewater rafting the release listed, but rather to the provision of unskilled guides who did not adequately screen other participants. The document’s general language fails to specifically and clearly set out the risk of negligence alleged here.

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21 Donahue, 331 P.3d at 348-49.

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Today’s decision allows intentionally disguised pre-recreational activity exculpatory releases and effectively lowers the bar for their validity. Because the release does not meet the standards adopted in the precedent Donahue relied on — and because if the “Release” in Kerr was an invalid release, the “Participant’s Acknowledgment of Risks” Morton signed must be an invalid release — I respectfully dissent from the court’s opinion concluding otherwise.


Rogers v. K2 Sports, LLC, 2018 U.S. Dist. LEXIS 217233

 Rogers v. K2 Sports, LLC, 2018 U.S. Dist. LEXIS 217233

United States District Court for the Western District of Wisconsin

December 28, 2018, Decided; December 28, 2018, Filed

17-CV-534-JDP

Reporter

2018 U.S. Dist. LEIS 217233 *

STEVEN SCOTT ROGERS, by his guardian, Tracy Rogers, TRACY ROGERS, SAMBA HEALTH BENEFIT PLAN, BLUE CROSS BLUE SHIELD OF WISONSIN, and STATE OF WISCONSIN DEPARTMENT OF HEALTH SERVICES, Plaintiffs, v. K2 SPORTS, LLC, LEXINGTON INSURANCE COMPANY, and AIG EUROPE LIMITED, Defendants.

Core Terms

helmet, summary judgment, testing, injuries, plaintiffs’, ASTM, instructions, contends, expert testimony, warning, ski, drop, product liability, move to strike, design defect, manufacturing, time of an accident, measured, opined, centimeters, parties, loss of consortium, admissibility, inadmissible, speculation, simulation, chinstrap, requires, warranty, exposed

Counsel: [*1] For Steven Scott Rogers, By his Guardian Tracy Rogers, Tracy Rogers, Blue Cross Blue Shield of Wisconsin, doing business as Athem Blue Cross and Blue Shield, Lexington Insurance Company, Plaintiffs, Counter Claimant, Counter Defendants: Charles M. Bye, Robert A. Parsons, LEAD ATTORNEY, Brian F. Laule, Bye, Goff, & Rohde, Ltd, River Falls, WI.

For Samba Health Benefit Plan, Plaintiff, Cross Claimant: Matthew Robert Falk, LEAD ATTORNEY, Falk Legal Group, Milwaukee, WI.

For State of Wisconsin – Department of Health Services, Involuntary Plaintiff, Plaintiff: Jesus Gabriel Garza, State of Wisconsin Department of Health Services, Madison, WI.

For K2 Sports, LLC, f/k/a K-2 Corporation, Defendant, Cross Defendant: Anne Marie Ellis, Gary A Wolensky, Michael Preciado, LEAD ATTORNEYS, Buchalter Nemer, Irvine, CA; Eric J. Meier, LEAD ATTORNEY, Husch Blackwell, LLP, Milwaukee, WI; Leslie Gutierrez, LEAD ATTORNEY, Milwaukee, WI; Christopher Hossellman, Buchalter, APC, Irvine, CA.

For AIG Europe Limited, Defendant, Cross Defendant: Charles W. Browning, Sara D. Corbello, LEAD ATTORNEYS, Plunkett Cooney, Bloomfield Hills, MI; Eric J. Meier, LEAD ATTORNEY, Husch Blackwell, LLP, Milwaukee, WI.

Judges: JAMES D. PETERSON, [*2] District Judge.

Opinion by: JAMES D. PETERSON

Opinion

OPINION & ORDER

Plaintiff Steven Scott Rogers fell while skiing and suffered a serious brain injury. Scott and his wife, plaintiff Tracy Rogers, contend that Scott’s helmet, made by defendant K2 Sports, was defectively designed and that the defect was a cause of his injury. They have sued K2 for negligence, strict product liability, and breach of warranty. Dkt. 32. Tracy also claims loss of consortium as a result of her husband’s injuries.1 K2 denies that the helmet was defective, contending instead that the helmet was the wrong size and that Scott had not properly fastened it, and that he was injured by direct contact with the ground.

K2 moves for summary judgment on all of plaintiffs’ claims. Dkt. 102. Plaintiffs oppose, and they move to strike defendant’s experts’ opinions that the helmet moved out of position when Scott fell. Dkt. 139.

At the heart of this case is a straightforward dispute about the role of the helmet in Scott’s injury. The court will limit the testimony of K2’s experts about how the injury occurred because some of those opinions are too speculative. But that still leaves genuine disputes about the fit of the helmet and whether it was [*3] properly designed, so K2’s motion for summary judgment will be denied.

UNDISPUTED FACTS

The following facts are undisputed except where noted.

Scott wore a K2 Phase 08 helmet while skiing with his stepson Coby at the Afton Alps Ski Area in Washington County, Minnesota, on New Year’s Eve 2015. Around 8:40 p.m., Scott and Coby skied down a beginner’s run called Nancy’s Nursery. Scott fell about halfway down the hill near some small mounds called “rollers.” Coby was in front of Scott and did not witness the fall. Another skier did witness the fall, but he was not able to recall any details about it, except that the fall did not seem unusual.

The fall left Scott unconscious and bleeding from his left ear. Scott was taken by ambulance to a hospital, where doctors conducted tests including a CT scan of Scott’s head. The accident caused brain hemorrhages and fractured Scott’s skull, left clavicle, and numerous ribs along Scott’s left side. As a result of permanent brain damage caused by the accident, Scott now lives at a VA hospital where he receives round-the-clock care.

The K2 helmet was certified as compliant with the standards of ASTM International, which is an organization that develops and [*4] publishes technical standards for a wide range of products.2 Compliance with ASTM standards is voluntary. The K2 helmet has three layers. The exterior layer is a hard-plastic shell. The shell is lined with an Expanded Polystyrene (EPS) energy-attenuating layer, which is supposed to absorb and dissipate shock from a blow to the head. The third layer is a comfort liner that can be adjusted to fit on the user’s head. After Scott’s accident, the lower left rear of the exterior shell was cracked. And, in the same area, the shock-absorbing EPS layer was flattened, and chunks of the EPS were missing.

The parties sharply dispute what happened to the helmet when Scott fell. K2 contends that the helmet was improperly fit and not properly fastened. K2’s theory is that as Scott fell, his helmet shifted out of place and the left posterior region of his head was exposed and directly hit the ground. Dkt. 144, ¶ 38. K2 contends that the helmet only partially protected Scott’s head, and that the point of impact on the helmet was below the “test line,” which is the lower limit of the area that is supposed to be protected under ASTM standards. K2 also contends that pictures from the [*5] day of the accident show that Scott failed to tighten the helmet’s chinstrap. Id., ¶ 39.

Plaintiffs contend that the helmet did not actually meet ASTM standards. Plaintiffs’ theory is that the bottom rear of the helmet was excessively tapered at the test line. As a result of the tapering, the helmet did not afford sufficient protection against a blow such as the one Scott suffered. Plaintiffs also contend that the helmet was the right size for Scott.

ANALYSIS

K2 moves for summary judgment on the grounds that plaintiffs cannot prove that Scott’s K2 helmet was defective or that it caused Scott’s injuries. In connection with their opposition to K2’s motion, plaintiffs move to strike parts of K2’s expert evidence. The court begins with plaintiffs’ challenge to the expert evidence.

A. Plaintiffs’ motion to exclude expert evidence

Under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993), and Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147, 119 S. Ct. 1167, 143 L. Ed. 2d 238 (1999), the court must serve as a gatekeeper to ensure that proffered expert testimony meets the requirements of Federal Rule of Evidence 702. Essentially, the gatekeeping function consists of a three-part test: the court must ensure that the expert is qualified, that the expert’s opinions are based on reliable methods and reasoning, and that the expert’s opinions will assist the jury in [*6] deciding a relevant issue. Myers v. Ill. Cent. R. R. Co., 629 F.3d 639, 644 (7th Cir. 2010). The proponent of expert evidence bears the burden of establishing that the expert’s testimony is admissible. Lewis v. CITGO Petroleum Corp., 561 F.3d 698, 705 (7th Cir. 2009).

Plaintiffs move to strike aspects of the expert reports of P. David Halstead and Irving Scher. Although plaintiffs dispute Halstead’s qualifications, the main question is whether Halstead and Scher used reliable methodologies and reasoning. The admissibility inquiry undertaken by the court “must be ‘tied to the facts’ of a particular case.” Kumho, 526 U.S. at 150 (quoting Daubert, 509 U.S. at 591). The “critical inquiry” for admissibility is whether the opinion is rationally connected to the underlying data or “connected to the existing data ‘only by the ipse dixit of the expert.'” Gopalratnam v. Hewlett-Packard Co., 877 F.3d 771, 781, 732 Fed. Appx. 484 (7th Cir. 2017). Expert testimony that merely asserts a “bottom line” or provides testimony based on subjective belief or speculation is inadmissible. Metavante Corp. v. Emigrant Sav. Bank, 619 F.3d 748, 761 (7th Cir. 2010).

1. P. David Halstead

P. David Halstead is the Technical Director of Southern Impact Research Center. Halstead conducted a series of drop tests to try to replicate the damage on Scott’s helmet, and thereby to determine the amount of force that the helmet and Scott experienced at the time of Scott’s fall. Dkt. 110, at 6. Halstead offers two main opinions: (1) [*7] that the helmet was not defective, and (2) that the helmet was out of place at the time of the accident. Plaintiffs move to strike three aspects of Halstead’s report. Dkt. 137, at 6-7.

First, plaintiffs move to strike Halstead’s opinion that the helmet was out of position at the time of the accident. Halstead expresses that opinion in various forms:

• “It is my opinion that Mr. Rogers’ injuries were caused by complex fall kinematics that resulted while his helmet was out of position (rotated slightly to the left and possibly higher on the right) exposing his temporal bone in the area he sustained the mastoid fracture.” Dkt. 110, at 7.

• “Mr. Rogers sustained his injuries when his partially helmeted head, with the mastoid area of the temporal bone exposed, made contact with a somewhat compliant surface such as snow substantially similar to the snow measured at Afton Alps.” Id. at 9.

• “The skull fracture is a result of functionally direct contact with the impact surface to the mastoid area.” Id.

• “Given the test results had the helmet been in position the skull fracture almost certainly would not have occurred.” Id.

The court agrees with plaintiff that Halstead has not shown that this opinion is [*8] rationally connected to underlying data.

Halstead conducted a series of drop tests using K2 Phase 08 helmets, the same model as Scott’s helmet. Id. at 6. Under the ASTM standards, a helmet must keep the user’s head from accelerating more than 300 g, meaning that the force of impact on the skull is equivalent to 300 times the force of gravity or less. Dkt. 124-13, at 3. Although these drop tests were not testing for ASTM compliance, Halstead used 300 g as a threshold for the helmet’s effectiveness. Halstead conducted eleven tests by dropping helmets on to a modular elastomer programmer (MEP), a rubber pad that is somewhat harder than packed snow. Dkt. 110, at 6. None of the drops resulted in an acceleration of more than 181 g or damaged the helmet in a way that resembled the damage to Scott’s helmet. So Halstead conducted three more tests using a harder, steel anvil. Id. at 6. One of these drops did crack the helmet, but the damage was still not as severe as Scott’s helmet.

Halstead opined that because his tests could not replicate the damage to Scott’s helmet, Scott’s helmet must not have been in place on Scott’s head at the time of the accident. Id. at 8-9. Halstead did not conduct any follow-up testing; he [*9] did not, for example, try dropping the helmet while it was out of place on the headform or try dropping the helmet without using a full-sized headform. Instead, Halstead scanned both the accident helmet and the most severely damaged test helmet with a laser. Id. After eyeballing the results of the laser scan, Halstead again concluded that the damage did not match and that therefore the helmet was not in place at the time of the accident. He opined specifically that the helmet rotated to the left, exposing the area where Scott’s skull was fractured.

Two factors that a court may consider regarding the admissibility of expert testimony are whether the expert “unjustifiably extrapolated from an accepted premise to an unfounded conclusion” and whether “the expert has adequately accounted for obvious alternative explanations.” Gopalratnam, 877 F.3d at 788 (quoting Fuesting v. Zimmer, Inc., 421 F.3d 528, 534-35 (7th Cir. 2005)). Both factors support striking Halstead’s opinion here. When Halstead’s test results failed to re-create the damage to Scott’s helmet, Halstead had a basis for concluding that Scott’s fall was in some way atypical. But he had no foundation to then extrapolate from these results that the helmet was therefore out of position. And he was even less justified [*10] in hypothesizing on the helmet’s exact orientation during the accident. Halstead did not confirm his hypothesis through additional testing, nor did he address alternative explanations for the damage to Scott’s helmet, such as the existence of a manufacturing defect or a weakening of the helmet through multiple impacts. And his use of laser scanning provided no additional details to support his hypothesis. Halstead simply picked one possible explanation for the test results and then assumed it was true. Halstead concedes that he is not an expert in the “full body kinematics” that are critical to understanding how Scott was injured. Dkt. 110, at 7.

Second, plaintiffs move to strike Halstead’s opinion regarding the speed and force of impact on Scott’s head at the time of the accident:

Based on biomechanical testing the likely impact speed of his head to the surface was 13-14 mph or higher, head accelerations were in the range of 170 g — 220 g with angular acceleration between 7000-8000 rad/sec2.

Dkt. 110, at 7. The court will strike this opinion. Rule 702 places the responsibility on the expert to explain how his methodologies support his opinions. Metavante, 619 F.3d at 761. Although not explicitly stated, Halstead appears [*11] to have adopted these numbers from the results of his tests on the MEP pad. Dkt. 110, at 6. But as Halstead emphasized in his report, the tests on the MEP pad were unable to replicate Scott’s accident. It is not clear why the speeds and forces of impact must nonetheless be correct, and Halstead does not provide an explanation.

Third, plaintiffs move to strike Halstead’s opinion regarding the helmet’s ability to protect against high-speed impact:

“As the biomechanical testing shows the helmet, at its thinnest, well below the test line is able to take an impact at nearly 14 miles per hour with a hemi anvil and still remain under 300g.”

Id. at 7. The court will not strike this opinion, which is based on the test results. Plaintiffs suggest that Halstead is not qualified to provide “biomechanical engineering opinions,” but in their reply brief, plaintiffs concede that Halstead is an experienced technician who is qualified to conduct the type of drop testing he performed. Dkt. 151, at 2.

The bottom line is that the court will consider Halstead’s drop testing analysis, but it will not consider his testimony that the helmet was out of place at the time of the accident.

2. Irving Scher, Ph.D., P.E

Irving [*12] Scher is a biomechanical engineer at Guidance Engineering and Applied Research. Scher’s report includes two separate sets of conclusions that are relevant to summary judgment. First, Scher used computer models to determine the fit and looseness of the helmet that Scott wore. Second, Scher conducted a biomechanical engineering analysis to determine the “kinematics” of the accident—the movement of Scott’s body and ski equipment according to the laws of physics. Plaintiffs move to strike both sets of conclusions. Dkt. 137, at 7-8.

a. Helmet fit

Scher opines that the helmet was poorly fit and that it was loose enough to move out of place:

• “Mr. Roger’s head circumference at the hat line is approximately 57 centimeters. Because the head size recommended for the subject helmet ranges from 59 to 62, Mr. Rogers’ head was at or below the lower end of the subject helmet’s size.” Dkt. 107, ¶¶ 10-12.

• “At the level of the helmet brim there was at least 2 to 4 centimeters of free space between Mr. Rogers’ head and the helmet in the anterior-posterior direction, and the helmet had space to rotate 20 degrees clockwise and counter-clockwise.” Id. ¶ 13.

• “The subject helmet was not snugly fitted to Mr. [*13] Rogers’ head.” Id. ¶ 14.

These opinions are rationally connected to the reasonably reliable data that Scher considered; the court will not strike them.

Scher created a 3D computer model of Scott’s head from the CT scans on the night of Scott’s accident. Dkt. 112, at 15. Using this model, Scher calculated circumference of Scott’s head as 57 centimeters. Because the helmet that Scott purchased was recommended for head circumferences of 59 to 62 centimeters, Scher opined that Scott’s helmet was one size too large. Scher scanned an exemplar K2 helmet of the same size as Scott’s helmet. Within his computer modeling software, Scher placed the 3D model of the helmet on the 3D model of Scott’s head. Scher determined that there was at least 2.25 centimeters of free space between Scott’s head and the interior of the helmet, and that with this extra space the helmet could freely rotate 20 degrees clockwise and counterclockwise. Finally, Scher viewed photographs of Scott on the day of the accident and determined that Scott’s chin strap was “loose.” Id. at 16. Scher’s analysis of the helmet’s fit led Scher to conclude that it was possible for the helmet to move out of position and expose a portion of the [*14] posterior region of Scott’s head.

Plaintiffs contend that Scher’s analysis is unreliable because Scott’s head actually has a circumference of 60 centimeters, not 57 centimeters. Plaintiffs’ measurement comes from Tracy’s declaration that she measured Scott’s head with a tape measure. Dkt. 123, ¶¶ 7-8.3 Neither party adduces evidence showing that the other party’s measurement is manifestly incorrect, so the size of Scott’s head is a matter of genuine dispute.4 Such a dispute does not render Scher’s opinion inadmissible.

b. Kinematics analysis

Scher also offered opinions about how Scott fell and how he was injured, which Scher refers to as a “kinematics” analysis. He expresses those opinions as follows:

• “Mr. Rogers likely caught his ski edge, fell forward and leftward while rotating clockwise and continuing downhill, and contacted the left, posterior region of his helmeted head on his acromioclavicular joint and proximal humerus, a very rigid area of hard-packed snow, or both.” Dkt. 112, at 36.

• “Because the helmet was not snug on Mr. Rogers’s head and he did not adjust appropriately the chin strap, the subject helmet was able to (and did) move out of position during Mr. Rogers’s fall [*15] and subsequent head impact.” Id.

• “No snowsport helmet would be able to prevent the injuries sustained by Mr. Rogers in the subject accident.” Id.

• “The subject helmet rotated axially counterclockwise and rightwards on Mr. Rogers’ head during his fall such that his helmet was out of place and exposed a portion of the left posterior region of his head just prior to impact.” Dkt. 107, ¶ 9.

• “Mr. Rogers failed to properly tighten the subject helmet’s chin strap, which allowed the subject helmet to move out of position as he fell.” Id. ¶ 15.

• “Immediately before Mr. Rogers’ head contacted the ground, the subject helmet moved out of position, causing the point of impact to be below the helmet’s test line.” Id. ¶ 18.

• “In my professional opinion, any snow sport helmet with a similar fit and loose chin strap on Mr. Rogers’ head would have similarly moved relative to his head in the subject fall.” Id. ¶ 20.

The court will not consider these opinions because they are too speculative: there is simply not enough information about how Scott fell to support this analysis.

Based on the assumption that “catching an edge” is a common occurrence among skiers, and the location and severity of Scott’s [*16] injuries, Scher created a computer simulation using the computer program MADYMO. Scher ran several simulations in MADYMO, using different estimates for Scott’s speed and the conditions on the ski slope. Id. at 29. He tweaked the variables in the simulation until he was able to create a simulation that could result in injuries similar to Scott’s injuries. Then based on that simulation, he opined on Scott’s body movements as he fell, and the forces that Scott experienced when he hit the ground. Scher opines both that Scott’s helmet hit the ground below the test line, and that Scott hit the ground with such force that no helmet could have prevented Scott’s injuries.

Scher’s simulation, and the opinions based on it, are inadmissible because they are based on guesswork rather than the facts of Scott’s accident. An expert must show that he has sufficient data to use the methodology employed. See Gopalratnam, 877 F.3d at 781 (Rule 702 requires the underlying data to be both qualitatively and quantitatively sufficient to conduct the analysis). Opinions that are based on speculation are inadmissible. Metavante, 619 F.3d at 761. Here, there was no witness who could describe the moments leading up to the fall, no measurement or even estimate of Scott’s speed at the [*17] time of the fall, and no reliable evidence of Scott’s skiing abilities or style. The court will exclude the opinions expressed on pages 21 through 31 of Scher’s report. Dkt. 112.

Scher is free to testify that the helmet was loose and that it might have moved out of position. And he can testify that based on Halstead’s testing, and based on the literature regarding head injuries and ski accidents, it seems unlikely that a typical fall could have caused the injuries that occurred. But Scher cannot speculate that the helmet actually moved or opine on the exact location of the helmet at the time of impact.

B. K2’s motion for summary judgment

Plaintiffs bring claims under theories of strict product liability, negligence, breach of warranty, and loss of consortium. K2 moves for summary judgment on all of plaintiffs’ claims. The court will grant summary judgment on only the breach of warranty claims, which plaintiffs waive. Genuine disputes of material fact preclude summary judgment on the other claims.

1. Summary judgment standard

Summary judgment is appropriate only if there is no genuine dispute as to any material fact. Fed. R. Civ. P. 56(a). In ruling on a motion for summary judgment, the court views all facts [*18] and draws all inferences in the light most favorable to the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). Summary judgment will not be granted unless “the record taken as a whole could not lead a rational trier of fact to find for the non-moving party.” Sarver v. Experian Info. Sols., 390 F.3d 969, 970 (7th Cir. 2004) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986)).

2. Strict Product liability claim

Wisconsin product liability law is codified under Wisconsin Statute § 895.047.5 A product liability claim has five elements: (1) the product was defective; (2) the defect rendered the product unreasonably dangerous; (3) the defect existed when the product left the control of the manufacturer; (4) the product reached the consumer without substantial change; and (5) the defect caused the claimant’s damages. Wis. Stat. § 895.047(1). K2 contends that they are entitled to summary judgment because plaintiffs cannot show that the helmet had a defect that rendered it unreasonably dangerous and because plaintiffs cannot show that the alleged defect caused Scott’s injuries.

There are three different categories of defects under the statute: design defects, manufacturing defects, and warning defects. Plaintiffs concede that they do not have evidence of a manufacturing defect, but they bring alternative claims for defective design if the helmet was in place during the accident and [*19] defective warning if the helmet fell out of place before the impact. Under the first theory, plaintiffs must show that the helmet had a design defect that caused Scott’s injuries to be worse than they would have been without the defect. Under the second theory, plaintiffs must show that the helmet’s instructions did not warn users to tighten the chinstrap. K2 seeks summary judgment as to both theories.

a. Defective design

Defendants contend that plaintiffs cannot adduce evidence of a design defect and that, even if a defect exists, plaintiffs cannot show that it caused Scott’s injuries. The court will address each element in turn.

i. Unreasonably dangerous defect

Summary judgment is inappropriate when resolution of a claim requires the court to choose between opposing expert testimony. See Wipf v. Kowalski, 519 F.3d 380, 385 (7th Cir. 2008) (explaining that “in a case of dueling experts . . . it is left to the trier of fact . . . to decide how to weigh the competing expert testimony”). That is the case here. Both parties hired experts to test K2 helmets according to ASTM standards, but the experts disagree on the testing procedures and achieved different results.6

Under Wisconsin’s product liability statute, a product is defective in design [*20] if the “foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design by the manufacturer and the omission of the alternative design renders the product not reasonably safe.” Wis. Stat. § 895.047(1)(a).

K2 contends that plaintiffs have not shown any evidence of a design defect. But plaintiffs’ expert, Mariusz Ziejewski, provides evidence sufficient to support a reasonable jury verdict that a foreseeable risk of harm could have been reduced by the adoption of a reasonable alternative design. Ziejewski’s report states that due to tapering at the edge, the K2 helmet does not provide the protection required by ASTM standards when struck in the lower back. Dkt. 116; Dkt. 124-7. Ziejewski further states that other helmets without this tapering do provide the protection required by ASTM. This makes the K2 helmet more dangerous than helmets from K2’s competitors.

K2 argues that Ziejewski’s report is insufficient to establish a design defect because the report does not specifically opine that the design of the K2 helmet rendered it “not reasonably safe” or “unreasonably dangerous.” Dkt. 103, at 12. But an expert does not need to parrot the exact language [*21] used in the statute. See In re Zimmer NexGen Knee Implant Prods. Liab. Litig., 218 F. Supp. 3d 700, 725 (N.D. Ill. 2016), aff’d sub nom. In re Zimmer, NexGen Knee Implant Prods. Liab. Litig., 884 F.3d 746 (7th Cir. 2018) (“Plaintiffs are not required to put forth an expert to say the magic words . . . But Plaintiffs must provide sufficient evidence to allow a jury to reach that conclusion without resorting to speculation”) (applying Wisconsin law). A jury could use the evidence in the report to find that the increased danger posed by the K2 helmet’s tapering is unreasonable.

K2 also contends that to establish a design defect, plaintiffs must show that the K2 helmet failed the ASTM standards that were in effect at the time of manufacturing. K2 argues that Ziejewski instead tested the K2 helmet according to current ASTM testing procedures. Ziejewski concedes that he used the updated procedures, but he argues that it is more accurate than the old testing standard. Dkt. 124, ¶¶ 22-23. Plaintiffs need to show only that a reasonable alternative design would have eliminated the risk of harm. Ziejewski tested multiple helmets using the same test methods and concluded the K2 helmet failed where alternative designs did not.

The ASTM standards may be relevant, but they are not dispositive. If the ASTM standards were adopted by federal or state law, then K2 would be entitled [*22] to a rebuttable presumption that the helmet was not defective. Wis. Stat. § 895.047(3)(c). But the ASTM standards are only voluntary. Compliance with voluntary standards at the time of manufacturing may be evidence that K2 behaved reasonably, in defense of plaintiffs’ negligence claim. See Michaels v. Mr. Heater, Inc., 411 F. Supp. 2d 992, 997 (W.D. Wis. 2006) (citing Getty Petroleum Marketing, Inc. v. Capital Terminal Co., 391 F.3d 312, 326 (1st Cir. 2004)). So, at trial, K2 can raise this defense in response to plaintiffs’ negligence claim. But it is only a piece of evidence that the jury may weigh when deciding whether defendants met their duty to exercise reasonable care. Id.

ii. Causation

K2 also contends that it is entitled to summary judgment because the helmet was out of place at the time of impact, so plaintiffs cannot show that any alleged defect caused Scott’s injuries. The location of the helmet at the time of the accident is sharply and genuinely disputed, so that theory provides no basis for granting summary judgment to K2.

Nevertheless, K2 contends that even if the helmet was in place, it is still entitled to summary judgment because no helmet could have prevented Scott’s injury because preexisting injuries made him particularly vulnerable. This theory provides no basis for granting summary judgment to K2 either.

K2 adduces some evidence that Scott had suffered [*23] previous head injuries. Dkt. 144, ¶¶ 45-50. But K2 has scant evidence that the prior injuries were serious ones. More important, K2 does not adduce any evidence to support the outlandish statement in its brief that “no helmet would have been able to prevent the injuries he sustained on December 31, 2015.” Dkt. 103, at 10. K2’s own proposed findings of fact undermine this idea:

Had Mr. Rogers not been wearing a helmet, his brain injury would have been at least as severe if not more severe than it was on December 331, 2015, leaving him with worse permanent residuals or traumatic brain injury, or could have even adversely impacted his survival.

Dkt. 144, ¶ 51. K2 also says that plaintiffs’ expert Ziejewski “concedes that an alternative design would not have prevented Mr. Rogers from suffering a traumatic brain injury or a subdural hematoma in the subject incident.” Dkt. 103, at 11 (citing Dkt. 144, ¶ 28). As plaintiffs point out, K2 has grossly misstated the substance of Ziejewski’s deposition testimony in this proposed fact. Ziejewski testified that a properly designed helmet would have prevented a subdural hematoma, a level 4 injury. Ziejewski acknowledged that even with a properly designed [*24] helmet, “mild traumatic brain injury” was still a possible or likely outcome. Dkt. 122, at 28:21-29:25.

b. Defective Instructions

Plaintiffs’ alternative theory is that if the helmet slipped out of place before impact, it slipped because of defective instructions. Under Wisconsin’s product liability statute, a product is defective because of inadequate instructions or warnings if “foreseeable risks of harm posed by the product could have been reduced or avoided by the provision of reasonable instructions or warnings by the manufacturer and the omission of the instructions or warnings renders the product not reasonably safe.” Wis. Stat. § 895.047(1)(a). Plaintiffs do not need to show that Scott actually read the instructions to prove causation. When a product is missing an adequate warning, the missing warning is a substantial factor in causing injury if a reasonable person would have heeded the warning and as a result avoided injury. Michaels, 411 F. Supp. 2d at 1006 (citing Tanner v. Shoupe, 228 Wis. 2d 357, 596 N.W.2d 805, 817-18 (Ct. App. 1999)). There is a presumption that any missing instructions would have been read, and therefore a presumption of causation. Id.

Throughout its briefing, K2 contends that the looseness of Scott’s chinstrap was a factor that caused the helmet to slip out of place. Plaintiffs contend [*25] that any mistake by Scott in tightening his chinstrap was caused by the fitting instructions included with the helmet. The helmet’s instructions state that the helmet should be snug and that after adjusting the straps and pads, “the skin on your forehead should move with the helmet.” Dkt. 145, ¶ 10. The instructions do not include specific directions on the tightness of the chinstrap. A reasonable jury could find that this instruction does not warn consumers that they need to tighten the chinstrap in addition to adjusting the pads and comfort liner.

K2 contends that plaintiffs are required to adduce expert testimony regarding the effectiveness of product warnings. Dkt. 103, at 15. But K2 cites no case in which expert testimony was required to show that a warning was defective. Under Wisconsin law, expert testimony is required only if the court finds that “the underlying issue is not within the realm of the ordinary experience of mankind.” State v. Kandutsch, 2011 WI 78, ¶ 28, 336 Wis. 2d 478, 799 N.W.2d 865 (internal quotations omitted). And Wisconsin courts have declined to require expert testimony in cases involving much more complex issues than these fitting instructions. See Lindeman v. Mt. Olympus Enterprises, Inc., No. 14-cv-435, 2015 U.S. Dist. LEXIS 105756, 2015 WL 4772925, at *3 (W.D. Wis. Aug. 12, 2015) (collecting cases). [*26] Here, the instructions are written in plain language, and the act of reading and following instructions is well within the ordinary experience of mankind.

The court denies K2’s motion for summary judgment on the defective instructions claim.

3. Negligence claim

Plaintiffs also bring a claim for negligence. To sustain this claim, plaintiffs must prove (1) the existence of a duty of care on the part of the defendant, (2) a breach of that duty of care, (3) a causal connection between the defendant’s breach of the duty of care and the plaintiff’s injury, and (4) actual loss or damage resulting from the injury. Smaxwell v. Bayard, 2004 WI 101, ¶ 32, 274 Wis. 2d 278, 682 N.W.2d 923. In Wisconsin, a manufacturer’s duty of care includes the duty to safely design the product so it is fit for its intended purpose, and the duty to conduct adequate inspections and tests to determine the extent of defects. Wis. Civil Jury Instructions § 3200(2).

K2 contends that plaintiffs have not adduced evidence of “specific acts of negligence.” Dkt. 103, at 17. But plaintiffs can rely on the same evidence used to establish their product liability claims. Although negligence and product liability are alternative theories of liability, there is significant overlap between the two. See Krien v. Harsco Corp., 745 F.3d 313, 317 (7th Cir. 2014) (“[A] [*27] claim of strict products liability is much like a negligence claim because it requires proof either that the product was unreasonably dangerous or, what amounts to the same thing, that it was defective”). Plaintiffs’ expert testimony from Ziejewski is sufficient to create a material dispute regarding whether K2 breached its duty to design a product that was safe for skiers.

4. Breach of warranty claim

K2 moves for summary judgment on plaintiffs’ claims for breach of warranty on two grounds. Dkt. 103, at 17-18. First, K2 contends that under Austin v. Ford Motor Co., claims for breach of warranty cannot be brought when the plaintiff has a tort claim. See 86 Wis.2d 628, 273 N.W.2d 233, 240 (1979) (“[I]t is inappropriate to bring an action for breach of warranty where a tort remedy is sought”). Second, K2 contends that there is no privity of contract between plaintiffs and K2. See St. Paul Mercury Ins. Co. v. Viking Corp., 539 F.3d 623, 626 (7th Cir. 2008) (Wisconsin law requires privity of contract between parties before liability can be founded on breach of express or implied warranty).

Plaintiffs have not substantively responded to either of these arguments. Dkt. 137, at 52-53. Failure to respond to an argument can result in waiver or forfeit of a claim. Nichols v. Nat’l Union Fire Ins. Co. of Pittsburgh, PA, 509 F. Supp. 2d 752, 760 (W.D. Wis. 2007) (collecting cases). Because plaintiffs did not [*28] respond to K2’s arguments regarding privity or the ability to bring warranty claims in a tort case, the court will grant summary judgment for K2 on plaintiffs’ claims for breach of warranty.

5. Loss of consortium claim

K2 moves for summary judgment on Tracy’s loss of consortium claim because it is derivative of Scott’s injuries. Because the court denies summary judgment on Scott’s product liability and negligence claims, it will also deny summary judgment on Tracy’s claim for loss of consortium.

K2 also moves to dismiss Tracy’s claim on the ground that plaintiffs have not properly pleaded loss of consortium in their amended complaint. Plaintiffs’ amended complaint does not include “loss of consortium” as an independent cause of action, but it does include allegations that “Plaintiff Tracy Rogers . . . has been deprived of the services, society, companionship and consortium of Scott Rogers as a proximate result of his enhanced injuries.” Dkt. 32, ¶ 23. K2 contends that this is insufficient under the plausible pleading standard of Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009).

Plaintiffs’ allegations are sufficient to state a claim. Even post-Iqbal, Federal Rule of Civil Procedure 8 requires only “adequate notice of the scope of, and basis for” the asserted claims. [*29] Avila v. CitiMortgage, Inc., 801 F.3d 777, 783 (7th Cir. 2015) (citing Vincent v. City Colleges of Chi., 485 F.3d 919, 923 (7th Cir.2007)). Here, K2 had adequate notice that Tracy was seeking relief for loss of consortium as a result of the enhanced injuries caused by the K2 helmet.

C. Additional motions and requests for relief

As a final matter, plaintiffs ask the court to deny certain requests by K2 that plaintiffs contend were improperly included in K2’s summary judgment reply. Dkt. 149. Some of the “motions” to which plaintiffs refer are objections to allegedly inadmissible evidence—objections that K2 is allowed to raise during summary judgment. For example, K2 objects that the declarations from Tracy and Ziejewski, first produced with plaintiffs’ summary judgment opposition, are untimely expert testimony. Dkt. 143, at 3-10. There is nothing improper about K2 making these objections in its summary judgment reply. (The court has overruled the objection to Tracy’s declaration, and it has not considered the Ziejewski declaration. Whether the Ziejewski evidence will be allowed at trial will be addressed later at the final pretrial conference.)

But K2 requests two additional forms of relief in its reply brief. First, K2 contends that plaintiffs should be sanctioned for spoliation because Tracy adjusted the helmet’s [*30] comfort liner and therefore altered it from its condition at the time of the accident. Dkt. 143, at 7-8 fn. 7. Second, K2 contends that plaintiffs did not disclose the existence of Scott’s ski goggles and must be ordered to turn them over. Id. at 8.

A party may not raise new issues in a reply brief. See Casna v. City of Loves Park, 574 F.3d 420, 427 (7th Cir. 2009). In any event, both of K2’s requests for additional relief are undeveloped. The spoliation arguments are relegated to a footnote. And both requests misconstrue the history of this case. K2’s own experts previously removed the helmet’s comfort lining at issue. Dkt. 112, at 10-11. And K2 was already aware of Scott’s goggles, Dkt. 130 (Tracy dep. 33:9-17), and Halstead included a pair of goggles as a factor in his testing. Dkt. 110, at 4. The court will deny K2’s requests for additional relief, thus granting plaintiffs’ request.

ORDER

IT IS ORDERED that:

1. Plaintiffs motion to exclude the opinion testimony of K2’s experts, Dkt. 139, is GRANTED in part and DENIED in part, as provided in this opinion.

2. Defendant K2’s motion for summary judgment, Dkt. 102, is DENIED for the most part. The motion is GRANTED only with respect to plaintiffs’ claims for breach of warranty.

3. Plaintiffs Scott Rogers and [*31] Tracy Rogers’ motion, Dkt. 149, for summary denial of K2’s motions is GRANTED in part. The court denies defendant K2’s motions to produce ski goggles and to sanction plaintiffs for spoliation.

4. Pursuant to the parties’ stipulation, Dkt. 250, all claims as to defendants Lexington Insurance Company and AIG Europe Limited are DISMISSED without prejudice.

Entered December 28, 2018.

BY THE COURT:

/s/ JAMES D. PETERSON

District Judge


Willhide-Michiulis v. Mammoth Mt. Ski Area, LLC, 2018 Cal. App. Unpub. LEXIS 4363

Willhide-Michiulis v. Mammoth Mt. Ski Area, LLC

Court of Appeal of California, Third Appellate District

June 27, 2018, Opinion Filed

C082306

Reporter

2018 Cal. App. Unpub. LEXIS 4363 *; 2018 WL 3134581KATHLEEN WILLHIDE-MICHIULIS et al., Plaintiffs and Appellants, v. MAMMOTH MOUNTAIN SKI AREA, LLC, Defendant and Respondent.

Notice: NOT TO BE PUBLISHED IN OFFICIAL REPORTS. CALIFORNIA RULES OF COURT, RULE 8.1115(a), PROHIBITS COURTS AND PARTIES FROM CITING OR RELYING ON OPINIONS NOT CERTIFIED FOR PUBLICATION OR ORDERED PUBLISHED, EXCEPT AS SPECIFIED BY RULE 8.1115(b). THIS OPINION HAS NOT BEEN CERTIFIED FOR PUBLICATION OR ORDERED PUBLISHED FOR THE PURPOSES OF RULE 8.1115.

Subsequent History: The Publication Status of this Document has been Changed by the Court from Unpublished to Published July 18, 2018 and is now reported at 2018 Cal.App.LEXIS 638.

Ordered published by, Reported at Willhide-Michiulis v. Mammoth Mountain Ski Area, LLC, 2018 Cal. App. LEXIS 638 (Cal. App. 3d Dist., June 27, 2018)

Prior History:  [*1] Superior Court of Mono County, No. CV130105.

Judges: Robie, Acting P. J.; Murray, J., Duarte, J. concurred.

Opinion by: Robie, Acting P. J.

Opinion

Plaintiff Kathleen Willhide-Michiulis was involved in a tragic snowboarding accident at Mammoth Mountain Ski Area. On her last run of the day, she collided with a snowcat pulling a snow-grooming tiller and got caught in the tiller. The accident resulted in the amputation of her left leg, several skull fractures and facial lacerations, among other serious injuries. She and her husband, Bruno Michiulis, appeal after the trial court granted defendant Mammoth Mountain Ski Area‘s (Mammoth) motion for summary judgment finding the operation of the snowcat and snow-grooming tiller on the snow run open to the public was an inherent risk of snowboarding and did not constitute gross negligence. Plaintiffs contend the trial court improperly granted Mammoth’s motion for summary judgment and improperly excluded the expert declarations plaintiffs submitted to oppose the motion. They also assert the trial court improperly denied their motion to transfer venue to Los Angeles County.

We conclude the trial court did not abuse its discretion by excluding the expert declarations. Further, [*2]  although snowcats and snow-grooming tillers are capable of causing catastrophic injury, as evidenced by Willhide-Michiulis’s experience, we conclude this equipment is an inherent part of the sport of snowboarding and the way in which the snowcat was operated in this case did not rise to the level of gross negligence. Because of this conclusion, the trial court properly granted Mammoth’s summary judgment motion based on the liability waiver Willhide-Michiulis signed as part of her season-pass agreement. With no pending trial, plaintiffs cannot show they were prejudiced by the court’s denial of their motion to transfer venue; thus we do not reach the merits of that claim. Accordingly, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

I

The Injury

Mammoth owns and operates one of the largest snowcat fleets in the United States to groom snow and maintain snow runs throughout Mammoth Mountain Ski Area. A snowcat is a large snow-grooming vehicle — 30 feet long and 18 feet wide. It has five wheels on each side of the vehicle that are enclosed in a track. In front of the snowcat is a plow extending the width of the snowcat. In back is a 20-foot wide trailer containing a tiller. A tiller “spins at a [*3]  high [speed] br[e]aking up the snow and slightly warming it and allowing it to refreeze in a firm skiable surface.” Mammoth strives not to have snowcats operating when the resort is open to the public; however, it may be necessary at times. Mammoth’s grooming guide instructs drivers that generally snowcats are operated at night or in areas closed to the public, except during: (1) emergency operations, (2) extremely heavy snow, or (3) transportation of personnel or materials. If a driver “must be on the mountain while the public is present,” however, the snowcat’s lights, safety beacon, and audible alarm must be on. The guide further directs drivers not to operate the tiller if anyone is within 50 feet or if on a snow run open to the public. In another section, the guide directs drivers not to operate the snowcat’s tiller when anyone is within 150 feet and “[n]ever . . . when the skiing public is present.”

Although the grooming guide directs drivers not to use the tiller on snow runs open to the public, there are exceptions to these rules. Snowcats use two large tracks, instead of wheels, to travel on the snow. If the tiller is not running, then the snowcat leaves behind berms and holes created by the [*4]  tracks, also known as track marks. Mammoth’s grooming guide explains that “[t]rack marks are not acceptable anywhere on the mountain and back-ups or extra passes should be used to remove them.” Track marks are not safe for the skiing public, so whenever the snowcat is justified to be on an open run, drivers commonly operate the tiller to leave behind safe conditions.

In fact, it is common for skiers and snowboarders to chase snowcats that operate on public snow runs. For example, Taylor Lester, a Mammoth season-pass holder, has seen snowcats with tillers operate on snow runs open to the public. She, her friends, and her family, commonly ride close behind these snowcats so they can take advantage of the freshly tilled snow the snowcats produce. Freshly-tilled snow is considered desirable and “more fun” because it has not been tarnished by other skiers.

There is a blind spot in the snowcat created by the roll cage in the cab of the vehicle. This blind spot is mitigated by the driver using the mirrors of the snowcat and turning his or her head to look out the windows. Snowcats are also equipped with turn signals.

At the top and bottom of every chair lift, Mammoth posts signs warning of the presence [*5]  of snowcats throughout the resort and on snow runs. Mammoth also includes these warnings in trail maps. Further, in Willhide-Michiulis’s season-pass agreement, she acknowledged she understood “the sport involves numerous risks including, but not limited to, the risks posed by variations in terrain and snow conditions, . . . unmarked obstacles, . . . devices, . . . and other hazards whether they are obvious or not. I also understand that the sport involves risks posed by loss of balance . . . and collisions with natural and man-made objects, including . . . snow making equipment, snowmobiles and other over-snow vehicles.” Willhide-Michiulis further agreed to release Mammoth from liability “for any damage, injury or death to me and/or my child arising from participation in the sport or use of the facilities at Mammoth regardless of cause, including the ALLEGED NEGLIGENCE of Mammoth.”

On March 25, 2011, Clifford Mann, the general manager of mountain operations, had to dig out various buildings using a snowcat during Mammoth’s hours of operation because between 27 and 44 inches of snow fell the night before. At approximately 3:15 p.m., Mann was digging out a building when a Mammoth employee [*6]  called to ask him to fill in a hole she had created with her snowmobile on Old Boneyard Road. Less than an hour before her call, the employee had been driving her snowmobile on the unmarked service road and got it stuck in the snow. She called for assistance and she and another Mammoth employee dug out the snowmobile. Once the machine had been dug out of the snow, there was too big of a hole for her and her coworker to fill in. They decided to call Mann to have him fill in the hole with the snowcat because it was near the end of the day and the hole was a safety hazard for all other snowmobiles that would use the service road at closing. Mann agreed and drove his snowcat with the tiller running to Old Boneyard Road, which branched off of the bottom of mambo snow run. Before leaving for the Old Boneyard Road location, Mann turned on the snowcat’s warning beacon, lights, and audible alarm.

Around this same time, Willhide-Michiulis, a Mammoth season-pass holder, and her brother went for their last snowboard run of the day while Willhide-Michiulis’s husband went to the car. It was a clear day and Willhide-Michiulis and her brother split up after getting off the chair lift. Willhide-Michiulis [*7]  snowboarded down mambo, while her brother took a neighboring run. While Willhide-Michiulis rode down mambo, she was in control of her snowboard and traveling on the left side of the run. She saw the snowcat about 150 feet ahead of her on the trail. It was traveling downhill and in the middle of the run. Willhide-Michiulis initiated a “carve” to her left to go further to the left of the snowcat. When she looked up, the snowcat had “cut off her path” and she could not avoid a collision. Willhide-Michiulis hit the back left corner of the snowcat and her board went into the gap between the tracks of the snowcat and the tiller. Willhide-Michiulis was then pulled into the tiller.

Mann did not use a turn signal before initiating the turn onto Old Boneyard Road. Before the collision, Mann had constantly been checking around the snowcat for people by utilizing the snowcat’s mirrors and by looking over his shoulders and through the windows. The snowcat did not have a speedometer, but Mann thought he was going less than 10 miles an hour. When he had nearly completed the turn from lower mambo onto Old Boneyard Road, Mann saw a “black flash” in his rearview mirror. He immediately stopped the snowcat, [*8]  which also stopped the tiller.

Mann got out of the snowcat and lifted the protective flap to look under the tiller. He saw Willhide-Michiulis stuck in the tiller and called for help. When help arrived, it took 30 minutes to remove Willhide-Michiulis from the tiller. She suffered a near-complete amputation of her left leg above the knee, which doctors amputated in a subsequent surgery. Her right leg sustained multiple fractures and lacerations, and she dislocated her right hip. The tiller also struck Willhide-Michiulis’s face, leaving multiple facial fractures and lacerations.

II

Plaintiffs’ Suit

Plaintiffs initially filed suit against Mammoth and Kassbohrer All Terrain Vehicles, the manufacturer of the snowcat and tiller, in Los Angeles County.1 As to Mammoth, plaintiffs alleged breach of contract, gross negligence, negligence, and loss of consortium. Venue was later transferred to Mono County, where the trial court dismissed multiple causes of action pertaining to Mammoth.2 The operative complaint alleges two causes of action against Mammoth — gross negligence and loss of consortium. At the same time plaintiffs filed the operative complaint, they also filed a motion to transfer venue back [*9]  to Los Angeles County because it was more convenient for the parties and because plaintiffs could not receive a fair trial in Mono County. The trial court denied plaintiffs’ motion to transfer venue without prejudice and we denied the petition for writ of mandate plaintiffs filed challenging that ruling.

Mammoth later moved for summary judgment on the two remaining causes of action arguing that plaintiffs’ case was barred by the primary assumption of risk doctrine and the express assumption of risk agreement Willhide-Michiulis signed as part of her season-pass contract. The court agreed and granted Mammoth’s motion for summary judgment finding primary assumption of risk and the waiver in Willhide-Michiulis’s season-pass agreement barred plaintiffs relief. It found there was no dispute over the material facts of plaintiffs’ claims and that Willhide-Michiulis was injured when “she fell and slid under a [Mammoth] operated snowcat and was caught in the operating tiller. [Willhide-Michiulis] was snowboarding on an open run as the snowcat was operating on the same run. It appears that the collision occurred as the snowcat operator was negotiating a left turn from the run to the service road.” [*10]  It also found that accepting plaintiffs’ factual allegations as true, i.e., Mann operated a snowcat and tiller on an open run, he failed to use a turn signal when making a sharp left turn from the center of the run, he failed to warn skiers of his presence, and no signs marked the existence of Old Boneyard Road — plaintiffs could not show Mammoth was grossly negligent or lacked all care because Mann took several safety precautions while driving the snowcat, and warning signs were posted throughout Mammoth Mountain, on trail maps, and in Willhide-Michiulis’s season-pass contract. Because plaintiffs could not show gross negligence, the waiver of liability they signed as part of their season-pass agreement barred recovery.

The court further found plaintiffs’ factual allegations did not support a finding that Mann’s conduct increased the inherent risks of snowboarding and, in fact, colliding with snow-grooming equipment is an inherent risk of the sport. Citing Souza v. Squaw Valley Ski Corp. (2006) 138 Cal.App.4th 262, 41 Cal. Rptr. 3d 389, the court explained snowcats are plainly visible and generally avoidable and serve as their own warning sign because they are an obvious danger. The snowcat is equally obvious when it is moving as when it is stationary. Thus, the [*11]  primary assumption of risk doctrine also barred plaintiffs from recovery.

The court also excluded the declarations of three experts plaintiffs attached to their opposition to dispute Mammoth’s claim that it did not act with gross negligence. The first expert, Michael Beckley, worked in the ski industry for 25 years and was an “expert of ski resort safety and snow cat safety.” He held multiple positions in the industry, including ski instructor, snowcat driver, and director of mountain operations. Beckley based his opinions on the topography of the snow run, Mammoth’s snow grooming manual and snow grooming equipment, and accounts of Mann’s conduct while driving the snowcat. He opined the operation of a snowcat on an open run with its tiller running was “extremely dangerous,” “an extreme departure from an ordinary standard of conduct,” and “violate[d] the industry standard.” He believed Mann increased the risk of injury to skiers and violated industry standards by driving down the middle of a snow run and failing to signal his turn. Mammoth’s failure to close the snow run, provide spotters, or comply with its own safety rules, Beckley declared, violated industry standards and the ordinary standard [*12]  of conduct.

Plaintiffs’ second expert, Eric Deyerl, was a mechanical engineer for over 20 years, with a specialization in vehicle dynamics and accident reconstruction. In forming his opinions, Deyerl inspected the snow run and snowcat equipment and relied on photographs and various accounts of the incident. Relying on those accounts, Deyerl opined that the circumstances leading to Willhide-Michiulis’s collision were different than those related by eyewitnesses. Deyerl believed that before initiating his turn, Mann failed to activate his turn signal, monitor his surroundings, and verify that he was clear — especially in the blind spot at the back left portion of the snowcat. No signs indicated the existence of Old Boneyard Road, and skiers like Willhide-Michiulis would not know to expect a snowcat to stop and turn from the middle of the snow run. All of these circumstances in isolation and together increased “the potential for a collision” and the risk of injury. Deyerl also disputed the accounts of eyewitnesses to Willhide-Michiulis’s collision with the snowcat.

The third expert, Brad Avrit, was a civil engineer who specialized in evaluating “safety practices and safety issues.” He was [*13]  also an “avid skier for over thirty years.” He based his opinions on the topography of the snow run, Mammoth’s snow grooming manual and equipment, and accounts of Mann’s driving. Avrit opined that operating a snowcat on an open snow run with an active tiller was “an extreme departure from the ordinary standard of conduct that reasonable persons would follow in order to avoid injury to others.” He also believed Mann’s conduct of failing to drive down the left side of the snow run, failing to monitor his surroundings, and failing to signal his left turn or verify he was clear to turn, “increase[d] the risk of collision and injury.” Avrit also thought the risk to skiers was increased by Mammoth’s failure to either close the snow run or use spotters while operating the snowcat when open to the public, or alternatively waiting the 30 minutes until the resort was closed to fix the hole on Old Boneyard Road.

Mammoth lodged both general and specific objections to these declarations. Generally, Mammoth asserted the experts’ opinions were irrelevant to the assumption of risk and gross negligence legal determinations before the court, the opinions lacked proper foundation, and the opinions were improper [*14]  conclusions of law. Specifically, Mammoth objected to several paragraphs of material on predominantly the same grounds. Finding the experts’ opinions irrelevant and citing Towns v. Davidson (2007) 147 Cal.App.4th 461, 54 Cal. Rptr. 3d 568 (Towns), the trial court sustained Mammoth’s general objections and numerous specific objections.

DISCUSSION

I

The Court Properly Granted Mammoth’s Motion For Summary Judgment

Plaintiffs contend the trial court improperly granted Mammoth’s motion for summary judgment. They first contend the trial court abused its discretion when excluding their experts’ declarations, and thus improperly ruled on Mammoth’s motion without considering relevant evidence. They also contend primary assumption of risk does not apply because Mann’s negligent driving and operation of a tiller on an open run increased the inherent risks associated with snowboarding. Further, plaintiffs argue these same facts establish Mammoth’s conduct was grossly negligent and fell outside of the liability waiver Willhide-Michiulis signed as part of her season-pass agreement.

We conclude the trial court did not abuse its discretion when excluding plaintiffs’ experts’ declarations. Additionally, plaintiffs cannot show Mammoth was grossly negligent and violated [*15]  the terms of the release of liability agreement found in Willhide-Michiulis’s season-pass contract. Because the express assumption of risk in the release applies, we need not consider the implied assumption of risk argument also advanced by plaintiffs. (Vine v. Bear Valley Ski Co. (2004) 118 Cal.App.4th 577, 590, fn. 2, 13 Cal. Rptr. 3d 370; Allan v. Snow Summit, Inc. (1996) 51 Cal.App.4th 1358, 1374-1375, 59 Cal. Rptr. 2d 813; Allabach v. Santa Clara County Fair Assn. (1996) 46 Cal.App.4th 1007, 1012-1013, 54 Cal. Rptr. 2d 330.)

A

The Court Did Not Abuse Its Discretion When Excluding The Expert Declarations Attached To Plaintiffs’ Opposition

As part of their argument that the court improperly granted Mammoth’s motion for summary judgment, plaintiffs contend the trial court abused its discretion when excluding the expert declarations attached to their opposition. Specifically, plaintiffs argue expert testimony was appropriate under Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 4 Cal. Rptr. 3d 103, 75 P.3d 30, because “the facts here certainly warrant consideration of the expert testimony on the more esoteric subject of assessing whether a negligently-driven snowcat is an inherent risk of recreational skiing.” Mammoth counters that the evidence was properly excluded because it was irrelevant and “offered opinions of legal questions of duty for the court to decide.” We agree with Mammoth.

“Generally, a party opposing a motion for summary judgment may use declarations by an expert to raise a triable issue of fact on an element of the [*16]  case provided the requirements for admissibility are established as if the expert were testifying at trial. [Citations.] An expert’s opinion is admissible when it is ‘[r]elated to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact . . . .’ [Citation.] Although the expert’s testimony may embrace an ultimate factual issue [citation], it may not contain legal conclusions.” (Towns, supra, 147 Cal.App.4th at p. 472.)

“In the context of assumption of risk, the role of expert testimony is more limited. ‘It is for the court to decide whether an activity is an active sport, the inherent risks of that sport, and whether the defendant has increased the risks of the activity beyond the risks inherent in the sport.’ [Citation.] A court in its discretion could receive expert factual opinion to inform its decision on these issues, particularly on the nature of an unknown or esoteric activity, but in no event may it receive expert evidence on the ultimate legal issues of inherent risk and duty.” (Towns, supra, 147 Cal.App.4th at pp. 472-473.)

In Kahn, the plaintiff was a 14-year-old member of a school swim team who broke her neck after diving in shallow water. (Kahn v. East Side Union High School Dist., supra, 31 Cal.4th at p. 998.) Her coach had previously assured her she would not have to dive [*17]  at meets and she never learned how to dive in shallow water. Minutes before a meet, however, the coach told the plaintiff she would have to dive and threatened to kick her off the team if she refused. With the help of some teammates, the plaintiff tried a few practice dives but broke her neck on the third try. She sued based on negligent supervision and training. (Ibid.)

The court determined the case could not be resolved on summary judgment as there was conflicting evidence whether the coach had provided any instruction or, if so, whether that instruction followed the recommended training sequence, and whether plaintiff was threatened into diving. (Kahn v. East Side Union High School Dist., supra, 31 Cal.4th at pp. 1012-1013.) The court concluded the trial court was not compelled to disregard the opinions of a water safety instructor about the proper training a swimmer requires before attempting a racing dive in shallow water. (Id. at pp. 999, 1017.) In so ruling, the Kahn court stated, “[c]ourts ordinarily do not consider an expert’s testimony to the extent it constitutes a conclusion of law [citation], but we do not believe that the declaration of the expert in the present case was limited to offering an opinion on a conclusion of law. We do not rely upon expert opinion testimony to [*18]  establish the legal question of duty, but ‘we perceive no reason to preclude a trial court from receiving expert testimony on the customary practices in an arena of esoteric activity for purposes of weighing whether the inherent risks of the activity were increased by the defendant’s conduct.'” (Id. at p. 1017.) Thus, while the Kahn court did not preclude the trial court from considering expert testimony about the “‘customary practices in an arena of esoteric activity,'” it did not mandate a court to consider it either.

Here, plaintiffs argue their experts’ declarations were necessary to inform the trial court of the “more esoteric subject” of whether Mann’s negligent driving of the snowcat increased the inherent risks of recreational snowboarding. The problem with plaintiffs’ argument is that the experts’ declarations did not inform the court “‘on the customary practices'” of the esoteric activity of snowcat driving. (See Kahn v. East Side Union High School Dist., supra, 31 Cal.4th at p. 1017.) While stating that Mann and Mammoth violated industry standards and increased the potential for collision, no expert outlined what the industry standards were for operating a snowcat and thus provided no context for the trial court to determine the legal question of duty. The [*19]  expert in Kahn provided this type of context by declaring the proper procedures for training swimmers to dive, making it so the trial court could compare the defendant’s conduct to the industry standard. (Kahn, at pp. 999.) The declarations here merely repeated the facts contained in the discovery materials and concluded the risk of injury and collision was increased because of those facts.

The conclusory statements in the expert declarations make plaintiffs’ case like Towns, where the trial court did not abuse its discretion when excluding an expert’s opinion. (Towns, supra, 147 Cal.App.4th at pp. 472-473.) In Towns, the plaintiff sued the defendant after he collided with her on a ski run. (Id. at p. 465.) In opposition to the defendant’s motion for summary judgment, the plaintiff submitted the declaration of her expert, a member of the National Ski Patrol and a ski instructor. (Id. at pp. 466, 471-472.) In his declaration, the expert opined that the defendant’s behavior was reckless and “‘outside the range of the ordinary activity involved in the sport of skiing.'” (Id. at p. 472.)

The trial court excluded the declaration in its entirety and granted the motion for summary judgment. The appellate court affirmed explaining, “[t]he nature and risks of downhill skiing are commonly understood, the [*20]  demarcation of any duty owed is judicially defined, and, most significantly, the facts surrounding the particular incident here are not in dispute. Thus, the trial court was deciding the issue of recklessness as a matter of law.” (Towns, supra, 147 Cal.App.4th at pp. 472-473.)

The court also noted the expert’s declaration “added nothing beyond declaring the undisputed facts in his opinion constituted recklessness. In short, he ‘was advocating, not testifying.’ [Citation.] He reached what in this case was an ultimate conclusion of law, a point on which expert testimony is not allowed. [Citation.] ‘Courts must be cautious where an expert offers legal conclusions as to ultimate facts in the guise of an expert opinion.’ [Citation.] This is particularly true in the context of assumption of risk where the facts are not in dispute.” (Towns, supra, 147 Cal.App.4th at p. 473.)

Like the expert in Towns, plaintiffs’ experts only provided ultimate conclusions of law. Although Beckley declared to be an expert in snowcat safety, he shed no light on the subject except to say Mann’s conduct was “an extreme departure from an ordinary standard of conduct,” and “violate[d] the industry standard.” Similarly, Avrit, who was an expert in evaluating safety practices, did nothing more than declare [*21]  that Mann’s driving and Mammoth’s grooming practices “increase[d] the risk of collision and injury.” Deyerl, an expert in accident reconstruction, disputed the accounts of percipient witnesses and declared Mann’s driving and Mammoth’s grooming practices increased “the potential for a collision” and the risk of injury. In short, plaintiffs’ experts provided irrelevant opinions more akin to “‘advocating, not testifying.'” (Towns, supra, 147 Cal.App.4th at p. 473.) Thus, the court did not abuse its discretion when excluding the expert declarations attached to plaintiffs’ opposition.

B

Summary Judgment Was Proper

We review a trial court’s grant of summary judgment de novo. (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 388-389, 46 Cal. Rptr. 3d 668, 139 P.3d 56.) “In performing our de novo review, we must view the evidence in a light favorable to [the] plaintiff as the losing party [citation], liberally construing [the plaintiff’s] evidentiary submission while strictly scrutinizing [the] defendant[‘s] own showing, and resolving any evidentiary doubts or ambiguities in [the] plaintiff’s favor.” (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768-769, 107 Cal. Rptr. 2d 617, 23 P.3d 1143.)

Summary judgment is proper when “all the papers submitted show that there is no triable issue as to any material fact and that [defendant] is entitled to a judgment as a matter of law.” (Code Civ. Proc., § 437c, subd. (c).) A defendant moving for summary judgment meets [*22]  its burden of showing there is no merit to a cause of action by showing one or more elements of the cause of action cannot be established or there is a complete defense to that cause of action. (Code Civ. Proc., § 437c, subd. (p)(2).) Once the defendant has made the required showing, the burden shifts back to the plaintiff to show a triable issue of one or more material facts exists as to that cause of action or defense. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849, 853, 107 Cal. Rptr. 2d 841, 24 P.3d 493.)

1

Mammoth Met Its Burden Of Showing There Was No Merit To Plaintiffs’ Claim

As described, plaintiffs signed a season-pass agreement, which included a term releasing Mammoth from liability “for any damage, injury or death . . . arising from participation in the sport or use of the facilities at Mammoth regardless of cause, including the ALLEGED NEGLIGENCE of Mammoth.” The agreement also contained a paragraph describing the sport as dangerous and involving risks “posed by loss of balance, loss of control, falling, sliding, collisions with other skiers or snowboarders and collisions with natural and man-made objects, including trees, rocks, fences, posts, lift towers, snow making equipment, snowmobiles and other over-snow vehicles.” “While often referred to as a defense, a release of future liability is [*23]  more appropriately characterized as an express assumption of the risk that negates the defendant’s duty of care, an element of the plaintiff’s case.” (Eriksson v. Nunnink (2015) 233 Cal.App.4th 708, 719, 183 Cal. Rptr. 3d 234.) Express assumption of risk agreements are analogous to the implied primary assumption of risk doctrine. (Knight v. Jewett (1992) 3 Cal.4th 296, 308, fn. 4, 11 Cal. Rptr. 2d 2, 834 P.2d 696; Amezcua v. Los Angeles Harley-Davidson, Inc. (2011) 200 Cal.App.4th 217, 227-228, 132 Cal. Rptr. 3d 567.) “‘”The result is that the defendant is relieved of legal duty to the plaintiff; and being under no duty, he cannot be charged with negligence.”‘” (Eriksson, at p. 719, italics omitted.)

Generally, in cases involving an express assumption of risk there is no cause to analyze the activity the complaining party is involved in or the relationship of the parties to that activity. (Allabach v. Santa Clara County Fair Assn., supra, 46 Cal.App.4th at p. 1012; see also Cohen v. Five Brooks Stable (2008) 159 Cal.App.4th 1476, 1484, 72 Cal. Rptr. 3d 471 [“With respect to the question of express waiver, the legal issue is not whether the particular risk of injury appellant suffered is inherent in the recreational activity to which the Release applies [citations], but simply the scope of the Release“]; see also Vine v. Bear Valley Ski Co., supra, 118 Cal.App.4th at p. 590, fn. 2 [“if the express assumption of risk in the release applies, the implied assumption of risk principles . . . would not come into play”].) However, where, as here, plaintiffs allege defendant’s conduct fell outside the scope of the agreement and a more detailed analysis of the scope of a defendant’s duty [*24]  is necessary.

“[T]he question of ‘the existence and scope’ of the defendant’s duty is one of law to be decided by the court, not by a jury, and therefore it generally is ‘amenable to resolution by summary judgment.'” (Kahn v. East Side Union High School Dist., supra, 31 Cal.4th at pp. 1003-1004.) A release cannot absolve a party from liability for gross negligence. (City of Santa Barbara v. Superior Court (2007) 41 Cal.4th 747, 750-751, 776-777, 62 Cal. Rptr. 3d 527, 161 P.3d 1095.) In Santa Barbara, our Supreme Court reasoned that “the distinction between ‘ordinary and gross negligence‘ reflects ‘a rule of policy’ that harsher legal consequences should flow when negligence is aggravated instead of merely ordinary.” (Id. at p. 776, quoting Donnelly v. Southern Pacific Co. (1941) 18 Cal.2d 863, 871, 118 P.2d 465.) The issue we must determine here is whether, with all facts and inferences construed in plaintiffs’ favor, Mammoth’s conduct could be found to constitute gross negligence. Plaintiffs alleged in the operative complaint that Mammoth was grossly negligent in the “operation of the subject snow cat,” by operating the tiller on an open run without utilizing spotters and failing to warn skiers of the snowcat’s presence on the run and the danger posed by its tiller. These allegations are insufficient to support a finding of gross negligence.

Ordinary negligence “consists of the failure to exercise the degree of care in a given situation that a reasonable person [*25]  under similar circumstances would employ to protect others from harm.” (City of Santa Barbara v. Superior Court, supra, 41 Cal.4th at pp. 753-754.) “‘”[M]ere nonfeasance, such as the failure to discover a dangerous condition or to perform a duty,”‘ amounts to ordinary negligence. [Citation.] However, to support a theory of ‘”[g]ross negligence,”‘ a plaintiff must allege facts showing ‘either a “‘”want of even scant care”‘” or “‘”an extreme departure from the ordinary standard of conduct.”‘” [Citations.]’ [Citations.] ‘”‘[G]ross negligence‘ falls short of a reckless disregard of consequences, and differs from ordinary negligence only in degree, and not in kind. . . .”‘” (Anderson v. Fitness Internat., LLC (2016) 4 Cal.App.5th 867, 881, 208 Cal. Rptr. 3d 792.)

“[T]he nature of a sport is highly relevant in defining the duty of care owed by the particular defendant.” (Knight v. Jewett, supra, 3 Cal.4th at p. 315.) “‘[I]n the sports setting . . . conditions or conduct that otherwise might be viewed as dangerous often are an integral part of the sport itself.’ [Citation.] [Our Supreme Court has] explained that, as a matter of policy, it would not be appropriate to recognize a duty of care when to do so would require that an integral part of the sport be abandoned, or would discourage vigorous participation in sporting events.” (Kahn v. East Side Union High School Dist., supra, 31 Cal.4th at p. 1004.) But the question of duty depends not only on the nature of the sport, but also on the [*26]  role of the defendant whose conduct is at issue in a given case. (Ibid.) “‘[A] purveyor of recreational activities owes a duty to a patron not to increase the risks inherent in the activity in which the patron has paid to engage.'” (Id. at p. 1005.) Thus, in cases involving a waiver of liability for future negligence, courts have held that conduct that substantially or unreasonably increased the inherent risk of an activity or actively concealed a known risk could amount to gross negligence, which would not be barred by a release agreement. (See Eriksson v. Nunnink (2011) 191 Cal.App.4th 826, 856, 120 Cal. Rptr. 3d 90.)

Numerous cases have pondered the factual question of whether various ski resorts have increased the inherent risks of skiing or snowboarding. (See Vine v. Bear Valley Ski Co., supra, 118 Cal.App.4th at p. 591 [redesign of snowboarding jump]; Solis v. Kirkwood Resort Co. (2001) 94 Cal.App.4th 354, 366, 114 Cal. Rptr. 2d 265 [construction of the unmarked race start area on the ski run]; Van Dyke v. S.K.I. Ltd. (1998) 67 Cal.App.4th 1310, 1317, 79 Cal. Rptr. 2d 775 [placement of signs in ski run].) It is well established that “‘”‘[e]ach person who participates in the sport of [snow] skiing accepts the dangers that inhere in that sport insofar as the dangers are obvious and necessary. Those dangers include, but are not limited to, injuries which can result from variations in terrain; surface or subsurface snow or ice conditions; bare spots; rocks, trees and other forms of natural [*27]  growth or debris; collisions with ski lift towers and their components, with other skiers, or with properly marked or plainly visible snow-making or snow-grooming equipment.'”‘” (Connelly v. Mammoth Mountain Ski Area (1995) 39 Cal.App.4th 8, 12, 45 Cal. Rptr. 2d 855, italics omitted; see also Lackner v. North (2006) 135 Cal.App.4th 1188, 1202, 37 Cal. Rptr. 3d 863; Towns, supra, 147 Cal.App.4th at p. 467.)

Plaintiffs argue the above language is simply dicta and no authority has ever held that colliding with snow-grooming equipment is an inherent risk in snowboarding or skiing. Because there is no authority specifically addressing the inherent risk of snow-grooming equipment, plaintiffs argue, colliding with a snowcat is not an inherent risk of snowboarding. Further, even if it were, Mammoth increased the inherent risk of snowboarding by operating a snowcat and tiller on an open run. We disagree.

The main problem with plaintiffs’ argument that common law has not recognized collisions with snow-grooming equipment as an inherent risk of skiing, is that plaintiffs’ season-pass agreement did. When signing their season-pass agreement, both Willhide-Michiulis and her husband acknowledged that skiing involved the risk of colliding with “over-snow vehicles.” Willhide-Michiulis testified she read the agreement but did not know an “over-snow vehicle” included a snowcat. Plaintiffs, however, [*28]  did not argue in the trial court or now on appeal that this term is ambiguous or that the parties did not contemplate collisions with snowcats as a risk of snowboarding. “Over-snow vehicles” is listed in the contract along with “snow making equipment” and “snowmobiles,” indicating a clear intent to include any vehicle used by Mammoth for snow maintenance and snow travel.

Moreover, common law holds that collisions with snow-grooming equipment are an inherent risk of skiing and snowboarding. In Connelly, the plaintiff collided with an unpadded ski lift tower while skiing. (Connelly v. Mammoth Mountain Ski Area, supra, 39 Cal.App.4th at p. 8.) In affirming summary judgment for the defendant, the court found this risk was inherent in the sport and the obvious danger of the tower served as its own warning. (Id. at p. 12.) In concluding that contact with the tower was an inherent risk of the sport, the Connelly court relied on Danieley v. Goldmine Ski Associates, Inc. (1990) 218 Cal.App.3d 111, 266 Cal. Rptr. 749. (Connelly, at p. 12.) In Danieley, a skier collided with a tree. (Danieley, at p. 113.) The Danieley court, in turn, relied on a Michigan statute that set forth certain inherent risks of skiing, including both trees and “‘collisions with ski lift towers and their components'” along with properly marked or plainly visible “‘snow-making or snow-grooming equipment.'” (Id. at p. 123.) “[B]ecause the Michigan [*29]  Ski Area Safety Act purports to reflect the preexisting common law, we regard its statutory pronouncements as persuasive authority for what the common law in this subject-matter area should be in California.” (Danieley, at p. 123.)

Although there may not be a published case specifically addressing the inherent risk of snowcats to skiers and snowboarders, a snowcat, otherwise known as snow-grooming equipment, is one of the risks explicitly adopted as California common law by the Danieley and Connelly courts. (Danieley v. Goldmine Ski Associates, Inc., supra, 218 Cal.App.3d at p. 123; Connelly v. Mammoth Mountain Ski Area, supra, 39 Cal.App.4th at p. 12.) Thus, in California, colliding with snow-grooming equipment is an inherent risk of the sport of snowboarding.

Nevertheless, plaintiffs argue operating the tiller of the snowcat on an open snow run increased the inherent risk snowcats pose to snowboarders. We recognize assumption of the risk, either express or implied, applies only to risks that are necessary to the sport. (Souza v. Squaw Valley Ski Corp., supra, 138 Cal.App.4th at pp. 268-269.) In Souza, a child skier collided with a plainly visible aluminum snowmaking hydrant located on a ski run. (Id. at p. 262.) Following Connelly, we affirmed summary judgment for the defendant, finding the snowmaking hydrant was visible and a collision with it was an inherent risk of skiing. (Souza, at pp. 268-272.) The snowmaking equipment in Souza was necessary [*30]  and inherent to the sport of skiing because nature had failed to provide adequate snow. (Id. at p. 268.)

Here, plaintiffs claim snowcats operating on open runs are not necessary or inherent to the sport because “[p]recluding a snowcat from operating on an open run would minimize the risks without altering the nature of the sport one whit.” As in Souza, we find the following quote apt: “‘”As is at least implicit in plaintiff’s argument, . . . the doctrine of [primary] assumption of risk . . . would not apply to obvious, known conditions so long as a defendant could feasibly have provided safer conditions. Then, obviously, such risks would not be ‘necessary’ or ‘inherent’. This would effectively emasculate the doctrine, . . . changing the critical inquiry . . . to whether the defendant had a feasible means to remedy [the dangers].”‘” (Souza v. Squaw Valley Ski Corp., supra, 138 Cal.App.4th at p. 269.)

Snow-grooming equipment, including the snowcat and tiller at issue here, are necessary to the sport of snowboarding because the snowcat grooms the snow needed for snowboarding into a skiable surface. Without the tiller also grooming the snow, the snowcat leaves behind an unusable and unsafe surface riddled with berms and holes. This surface is so unsafe that Mammoth’s grooming [*31]  guide prohibits snowcat drivers from leaving behind such hazards. Given the purpose of the snowcat and tiller, it cannot be said that they are not inherent and necessary to the sport of snowboarding.

The fact that the snowcat and tiller Willhide-Michiulis collided with was operating during business hours and on an open run does not affect our analysis. Willhide-Michiulis’s husband testified that, although uncommon, he had seen snowcats operating at Mammoth during business hours transporting people. Further, Taylor Lester, a witness to Willhide-Michiulis’s collision and a longtime Mammoth season-pass holder, testified that she had seen snowcats operating at Mammoth on prior occasions as well. Out of the 10 years she has been a season-pass holder, Lester had seen snowcats operating during business hours at Mammoth 20 to 40 times, half of which had been using their tillers.

In fact, Lester testified that it was common for her and her friends, and also her sister and father, to ride close behind snowcats that were tilling so that they could take advantage of the freshly tilled snow the snowcats produced. Freshly-tilled snow is considered desirable and “more fun” because it has not been tarnished [*32]  by other skiers. Lester’s sister also testified she liked to “sneak behind” snowcats while they groom runs to ride on the freshly-tilled snow. Even after Willhide-Michiulis’s collision, Lester’s sister still snowboarded behind snowcats to ride the freshly groomed snow.

Given this testimony, we conclude that the use of snowcats and their tillers on ski runs during business hours is inherent to the sport of snowboarding, the use of which does not unreasonably increase the risks associated with the sport. To find Mammoth liable because it operated a snowcat and tiller during business hours would inhibit the vigorous participation in the sport Lester and her sister testified about. Instead of racing to freshly tilled snow to take advantage of its unspoiled status, snowboarders and skiers alike would be prohibited from chasing snowcats and instead have to settle for inferior skiing conditions. Further, snowcats would no longer be used as modes of transportation at ski resorts, a common practice testified to by Willhide-Michiulis’s husband. Or snowcats would operate, but without their tiller, leaving behind unsafe skiing conditions that would doubtlessly interfere with full and vigorous participation [*33]  in the sport. (See Kahn v. East Side Union High School Dist., supra, 31 Cal.4th at p. 1004 [“it would not be appropriate to recognize a duty of care when to do so would require that an integral part of the sport be abandoned, or would discourage vigorous participation in sporting events”].)

Regardless of the fact that snowcats and tillers are inherent in the sport of snowboarding, plaintiffs also allege the snowcat Willhide-Michiulis collided with was not obvious and Mammoth was grossly negligent because it failed to provide spotters or warn skiers of the snowcat’s presence on the run or the dangerousness of its tiller. As described, gross negligence requires a showing of “‘either a “‘”want of even scant care”‘” or “‘”an extreme departure from the ordinary standard of conduct.”‘”‘” (Anderson v. Fitness Internat., LLC., supra, 4 Cal.App.5th at p. 881.)

Here, Mammoth did warn plaintiffs of the presence of snowcats and other snow-grooming equipment at the ski resort. At the top and bottom of every chair lift, Mammoth posts signs warning of the presence of snowcats throughout the resort and on snow runs. Mammoth also included these warnings in its trail maps. These warnings were also apparent in plaintiffs’ season-pass agreement, which warned that “the sport involves numerous risks including, but not limited to, the risks [*34]  posed by . . . collisions with natural and man-made objects, including . . . snow making equipment, snowmobiles and other over-snow vehicles.” Willhide-Michiulis acknowledged that she saw the warning contained in her season-pass agreement.

Not only were plaintiffs warned about the possible presence of snow-grooming equipment throughout the ski resort, but Willhide-Michiulis was warned of the presence of the specific snowcat she collided with. Before going down the mambo run to fix the pothole on Old Boneyard Road, Mann turned on the safety beacon, warning lights, and audible alarm to the snowcat. This provided warning to all those around the snowcat, whether they could see it or not, to the snowcat’s presence. Further, the snowcat Willhide-Michiulis collided with is large, bright red, and slow-moving, making it generally avoidable by those around it. Indeed, Willhide-Michiulis testified that she saw the snowcat about 150 feet before she collided with it. Although she claims the snowcat cut off her path, the snowcat was traveling less than ten miles an hour before standing nearly motionless while turning onto Old Boneyard Road downhill from Willhide-Michiulis. As the trial court found, [*35]  “‘the very existence of a large metal plainly-visible [snowcat] serves as its own warning.'” (Citing Souza v. Squaw Valley Ski Corp., supra, 138 Cal.App.4th at p. 271.) Upon seeing such a warning, it was incumbent upon Willhide-Michiulis to avoid it — nothing was hidden from Willhide-Michiulis’s vision by accident or design.

Given these facts, we cannot conclude, as plaintiffs would have us do, that Mann’s failure to timely signal his turn or Mammoth’s failure to provide spotters or warn of the specific dangers of a tiller constituted gross negligence. Given all the other warnings provided by Mammoth and Mann, plaintiffs cannot show “‘either a “‘”want of even scant care”‘” or “‘”an extreme departure from the ordinary standard of conduct.”‘”‘” (Anderson v. Fitness Internat., LLC., supra, 4 Cal.App.5th at p. 881.) Accordingly, Mammoth was successful in meeting its burden to show the allegations in plaintiffs’ complaint lacked merit.

2

No Triable Issue Of Fact Exists To Preclude Summary Judgment

Because Mammoth met its initial burden, plaintiffs now have the burden to show that a triable issue of fact exists. Plaintiffs argue that one does exist because the way Mann drove the snowcat at the time of the collision was grossly negligent. In addition to the allegations in the complaint — that operating a snowcat and tiller [*36]  on an open run was grossly negligent — plaintiffs alleged in their opposition that Mann was grossly negligent also for failing to use a turn signal when making a sharp left turn from the center of a snow run onto an unmarked service road without warning skiers of his presence or the possibility that a snowcat would turn at the locations of Old Boneyard Road. They point to their experts’ declarations and Mann’s violations of Mammoth’s safety standards as support for this contention.

“‘Generally it is a triable issue of fact whether there has been such a lack of care as to constitute gross negligence [citation] but not always.'” (Chavez v. 24 Hour Fitness USA, Inc. (2015) 238 Cal.App.4th 632, 640, 189 Cal. Rptr. 3d 449, quoting Decker v. City of Imperial Beach (1989) 209 Cal.App.3d 349, 358, 257 Cal. Rptr. 356; see also City of Santa Barbara v. Superior Court, supra, 41 Cal.4th at p. 767 [“we emphasize the importance of maintaining a distinction between ordinary and gross negligence, and of granting summary judgment on the basis of that distinction in appropriate circumstances”].) Where the evidence on summary judgment fails to demonstrate a triable issue of material fact, the existence of gross negligence can be resolved as a matter of law. (See Honeycutt v. Meridian Sports Club, LLC (2014) 231 Cal.App.4th 251, 260, 179 Cal. Rptr. 3d 473 [stating a mere difference of opinion regarding how a student should be instructed does not amount to gross negligence]; Frittelli, Inc. v. 350 North Canon Drive, LP (2011) 202 Cal.App.4th 35, 52-53, 135 Cal. Rptr. 3d 761 [no triable issue of material fact precluding summary [*37]  judgment, even though the evidence raised conflicting inferences regarding whether measures undertaken by the defendants were effective to mitigate effects on commercial tenant of remodeling project]; Grebing v. 24 Hour Fitness USA, Inc. (2015) 234 Cal.App.4th 631, 639, 184 Cal. Rptr. 3d 155 [no triable issue of material fact where defendant took several measures to ensure that its exercise equipment, on which plaintiff was injured, was well maintained].)”

As described, Mann’s driving of the snowcat with a tiller on an open run was not grossly negligent and was, in fact, an inherent part of the sport of snowboarding and conduct contemplated by the parties in the release of liability agreement. The question now is whether the additional conduct alleged in plaintiffs’ opposition — Mann’s failure to use a turn signal, making of a sharp left turn from the middle of the snow run, failure to warn skiers on mambo of his presence, and failure to warn skiers of the existence of Old Boneyard Road — elevated Mann’s conduct to gross negligence. We conclude it does not.

We have already described why plaintiffs’ claims that Mann failed to provide adequate warning of his existence on the snow run and of his turn did not rise to the level of gross negligence. His additional alleged conduct [*38]  of driving down the middle of the snow run and making a sharp left turn onto an unmarked service road also do not justify a finding of gross negligence in light of the precautions taken by both Mammoth and Mann. Mammoth warned plaintiffs of the possible presence of snow-grooming equipment in its season-pass contracts, trail maps, and throughout the ski resort. Mann also turned on the snowcat’s warning lights, beacon, and audible alarm before driving down mambo. Mann testified he constantly looked for skiers and snowboarders while driving the snowcat down mambo and that he checked through the snowcat’s mirrors and windows to make sure he was clear before making the turn onto Old Boneyard Road. He also testified he did not drive the snowcat faster than ten miles an hour while on mambo and was traveling even slower during the turn. This fact was confirmed by Lester. Given these affirmative safety precautions, Mann’s failure to use a turn signal when turning from the middle of the run onto an unmarked service road did not equate to “‘either a “‘”want of even scant care”‘” or “‘”an extreme departure from the ordinary standard of conduct.”‘”‘” (See Anderson v. Fitness Internat., LLC, supra, 4 Cal.App.5th at p. 881.)

Plaintiffs dispute this conclusion by [*39]  citing to their expert declarations and Mammoth’s grooming guide as support that Mann’s conduct was an extreme departure from industry standards and Mammoth’s own safety policies. Evidence of conduct that evinces an extreme departure from safety directions or an industry standard could demonstrate gross negligence. (See Jimenez v. 24 Hour Fitness USA, Inc. (2015) 237 Cal.App.4th 546, 561, 188 Cal. Rptr. 3d 228.) Conversely, conduct demonstrating the failure to guard against, or warn of, a dangerous condition typically does not rise to the level of gross negligence. (See DeVito v. State of California (1988) 202 Cal.App.3d 264, 272, 248 Cal. Rptr. 330.)

To illustrate this point, plaintiffs cite two cases. First, they rely on Jimenez. In Jimenez, one of the plaintiffs was injured when she fell backwards off of a moving treadmill and hit her head on an exercise machine that was approximately four feet behind the treadmill. (Jimenez v. 24 Hour Fitness USA, Inc., supra, 237 Cal.App.4th at p. 549.) The plaintiffs presented evidence “indicating a possible industry standard on treadmill safety zones,” including the manufacturer’s statement in its manual that a six-foot space behind the treadmill was necessary for user safety and an expert’s statement that placing other equipment so close to the back of the treadmill greatly increased the risk of injury. (Id. at p. 556.) The court concluded, based on this evidence, a jury could reasonably find [*40]  the failure to provide the minimum safety zone was an extreme departure from the ordinary standard of care, and thus a triable issue of fact existed to preclude summary judgment. (Id. at p. 557.)

In Rosencrans v. Dover Images, Ltd. (2011) 192 Cal.App.4th 1072, 122 Cal. Rptr. 3d 22, also relied upon by plaintiffs, the plaintiff was riding a motorcycle when he fell near a platform in an area out of view of other riders at a motocross facility, and was struck by another cyclist. (Id. at pp. 1072, 1077.) The caution flagger, who was supposed to have staffed the platform to alert riders to the presence of fallen cyclists, was not on duty when plaintiff fell. The court found the release plaintiff signed unenforceable against a claim of gross negligence. (Id. at pp. 1077, 1081.) It noted the dangerous nature of the sport, and also found a specific duty on the part of the course operator to provide some form of warning system such as the presence of caution flaggers. (Id. at p. 1084.) Also, the course owner had a safety manual requiring flaggers to stay at their stations whenever riders were on the course, and expert testimony was presented that caution flaggers were required at all such times. (Id. at p. 1086.) Because the evidence could support a finding that the absence of a caution flagger was an extreme and egregious departure from the standard of [*41]  care given the applicable safety manual and in light of knowledge of the particular dangers posed, the claim of gross negligence should have survived summary judgment. (Id. at p. 1089.)

Plaintiffs’ reliance on these cases is misplaced for two reasons. First, unlike Jimenez and Rosencrans, plaintiffs presented no expert evidence regarding the safety standards applicable to snowcat drivers. (See Rosencrans v. Dover Images, Ltd., supra, 192 Cal.App.4th at pp. 1086-1087 [triable issue of fact as to gross negligence where a safety expert’s declaration described common safety precautions for motocross and stated that the defendant’s failure to take those safety precautions constituted an extreme departure from the ordinary standard of conduct and showed a blatant disregard for the safety of the participants].) And second, plaintiffs did not produce evidence showing that Mammoth failed to take any safety precautions required by company safety policies.

As described, the trial court did not abuse its discretion in excluding the experts’ declarations from evidence. The declarations did nothing more than to provide conclusions that Mann’s and Mammoth’s conduct violated industry standards and constituted gross negligence. The experts did not articulate what the industry standards [*42]  for driving a snowcat or for protecting the skiing public from a snowcat actually were, let alone how Mann and Mammoth violated them. Instead, the experts merely provided their opinions that Mammoth and Mann failed to guard from or warn of the dangerous condition the snowcat and tiller posed. This is insufficient for a showing of gross negligence. (See DeVito v. State of California, supra, 202 Cal.App.3d at p. 272.)

Plaintiffs’ reliance on Mammoth’s grooming guide is likewise misplaced. Plaintiffs characterize the grooming guide as containing “safety standard[s],” which Mann violated by operating the snowcat’s tiller while the public was present. The grooming guide, however, does not purport to be a safety guide or to set safety standards for Mammoth’s snowcat operators. Instead, it is a “manual” where snowcat operators “will find a basis for all training that is a part of the Slope Maintenance Department.” While “all training” may also include safety training, nothing submitted by plaintiffs indicate that the excerpts they rely on are industry or company-wide safety standards as opposed to Mammoth’s guide to “acceptable high quality” grooming.

For example, the grooming guide instructs drivers to “[n]ever operate the tiller when the skiing public is present.” But [*43]  the guide also justifies a snowcat’s presence in areas open to the public during emergencies, periods of extremely heavy snow, or for transportation of personnel or materials. Here, there was extremely heavy snow and a hazardous condition requiring Mann to drive a snowcat on public snow runs. The guide further instructs drivers that track marks left behind by a snowcat without a tiller are “not acceptable” and must be removed. It was Mann’s understanding from these guidelines that once a snowcat’s presence was justified in an area open to the public, the tiller also had to be running to leave behind safe skiing conditions.

Further, the guide instructs snowcat drivers to travel on a groomed snow run instead of on ungroomed snow on either side of the run. This is because ungroomed snow is made of unstable soft snow that cannot support the weight of a snowcat. According to the grooming guide, driving on a finished groomed run “is better than risking your cat or your life” on the ungroomed snow on the sides of the run. Thus, Mann did not violate Mammoth’s safety policy by driving down the center of a snow run when traveling to Old Boneyard Road and operating the snowcat’s tiller on a public [*44]  run. Because it is not reasonable a jury would find Mann violated safety policies contained in the grooming guide, let alone that that violation constituted more than mere negligence, plaintiffs have not shown that Mann’s or Mammoth’s conduct rose to the level of gross negligence.

II

Venue

Plaintiffs contend the trial court abused its discretion when denying their motion to transfer venue to Los Angeles County where they initially filed their suit. Specifically, plaintiffs argue their motion should have been granted because it was more convenient for the parties and their witnesses to have trial in Los Angeles County and because plaintiffs could not receive a fair trial in Mono County. Thus, plaintiffs argue, “upon reversal of summary judgment, the trial court should be directed to issue an order transferring this action back to Los Angeles.”

As plaintiffs acknowledge, a reversal of the court’s summary judgment order is a vital initial step to reversal of the trial court’s order regarding venue. This is because without first showing that their case is active and trial is pending, plaintiffs cannot show a miscarriage of justice resulting from the denial of their venue motion.

We are enjoined [*45]  by our Constitution not to reverse any judgment “for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.” (Cal. Const., art. VI, § 13; see also Code Civ. Proc., § 475.) Prejudice is not presumed, and “our duty to examine the entire cause arises when and only when the appellant has fulfilled his duty to tender a proper prejudice argument.” (Paterno v. State of California (1999) 74 Cal.App.4th 68, 106, 87 Cal. Rptr. 2d 754.)

Plaintiffs cannot show prejudice resulting from the denial of their venue motion because we upheld the trial court’s summary judgment ruling and their case has been dismissed. Thus, even if the venue motion should have been granted and venue transferred to Los Angeles for trial, there is no trial to be had. Accordingly, we need not address plaintiffs’ claim of error regarding their motion to transfer venue.

DISPOSITION

The judgment is affirmed. Costs are awarded to defendants. (Cal. Rule of Court, rule 8.278, subd. (a)(1).)

/s/ Robie, Acting P. J.

We concur:

/s/ Murray, J.

/s/ Duarte, J.


Whitewater rafting release upheld by the Alaska Supreme Court.

Language in the release stated the defendant would and had done their best to keep people adequate… that language almost voided the release. Don’t put in a release information that can be used against you!

Langlois v. Nova River Runners, Inc., 2018 Alas. LEXIS 31

State: Alaska, Supreme Court of Alaska

Plaintiff: Vanessa L. Langlois, Personal Representative of the Estate of Stephen J. Morton

Defendant: Nova River Runners, Inc.

Plaintiff Claims: Wrongful Death and multiple theories of Negligence

Defendant Defenses: Release

Holding: For the Defendant

Year: 2018

Summary

The deceased died whitewater rafting. Alaska has a six-prong test to determine if a release is valid. Here, the plaintiff argued the release in question failed on every point.

The Alaskan Supreme Court disagreed; however, on a few of the issues, the court struggled to have this release meet the requirements needed.

Facts

The defendant operated whitewater raft trips on Six Mile Creek near Hope, Alaska. The deceased signed a release prior to going rafting. No one could remember if the deceased read both sides of the release, however, ample time was given so the release could have been read.

The release is a 2-sided document. One side is labeled Participants Acknowledgment of Risk. The other side is where the participants acknowledge they have read the release.

The raft trip consists of three canyons. After the first two canyons, the participants are given an opportunity to get off the trip because the third canyon is the hardest. The deceased did not leave the trip. Sometime in the canyon is raft capsized, and the decedent died.

The spouse of the deceased brought his lawsuit on her behalf and as the executor (personal representative) of the estate. The trial court dismissed the plaintiff’s claims after the defendant filed a motion for summary judgment based on the release signed by the deceased. The plaintiff appealed.

The decision was heard by the Alaska Supreme Court. Alaska does not have an intermediate appellate court so appeals from the trial court go to the Supreme Court.

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

Alaska has a statute, Alaska Statute 09.65.290, that protects recreational defendants from liability from the inherent risks of the activity. The court recognized the statute is weak and stated that business in Alaska must supplement their protection by using a release.

The Alaska Supreme Court decided one prior decision concerning releases Donahue v. Ledgends, Inc., 2014 Alas. LEXIS 153, See Alaskan Supreme Court upholds releases for climbing gym and sets forth requirements on how releases will be upheld in AK. The court relied on its prior decision in Donahue to support its decision here.

In Donahue, the court created a six-part test to test the validity of a release.

…(1) the risk being waived must be specifically and clearly set forth (e.g. death, bodily injury, and property damage); (2) a waiver of negligence must be specifically set forth using the word “negligence”; (3) these factors must be brought home to the releasor in clear, emphasized language . . . ; (4) the release must not violate public policy; (5) if a release seeks to exculpate a defendant from liability for acts of negligence unrelated to inherent risks, the release must suggest an intent to do so; and (6) the release agreement must not represent or insinuate standards of safety or maintenance.

The plaintiff argued the release in this case did not satisfy the requirements set forth in Donahue.

The first argument was the release was not conspicuous and unequivocal because the release was two sided, and the sides did not appear to incorporate or be connected to each other.

The court did not agree with the argument because whether or not it was two different documents and whether or not the deceased read both sides was irrelevant because he signed the document. “We note that Participants in a recreational activity need not read a release for it to be binding if the language of the release is available to them.

The next argument was different.

The Estate also argues that NOVA’s Release “does not specifically and clearly set forth the risk that the NOVA instructors may have been negligently trained or supervised, or that they may give inadequate warning or instructions.”

The court found that the language in the release was broad enough to cover this claim.

However, the Release covers this risk as well; it indemnifies the “Releasees” in capital letters from liability for injury or death, “whether arising from negligence of the Releasees or otherwise,” and specifically defines “Releasees” to include “employees.”

The court also found that in Donahue,

…we also observed that “[i]t would not be reasonable to conclude that [the defendant] sought a release only of those claims against it that did not involve the acts or omissions of any of its employees.”

The plaintiffs then argued that a release must use the word negligence in it. This is a requirement of many states. Here, however, the argument failed because the release did use the term negligence, several times. The plaintiff’s argued that each time the word negligence was used, it was used in a way that was different from the prior ways so the release was not clear and explicit.

Next the plaintiff’s argued the language was not clear and did not adequately define the activity. The court found this release used capital letters to highlight the clauses waiving negligence, and the negligence clause was not concealed from view.

The clause contained some legalese; however, releases should be read “as a whole” to determine whether or not the language in the release “clearly notify the prospective releasor of the effect of signing the agreement.”

The release was a general release in that it also included release language for glacier hiking and ice climbing. However, the inherent risks outlined in the release were the risks of whitewater rafting. With that risk language, the court found the reader would know they were signing a release.

Based on that language it is obvious the release would fail for ice climbing and glacier hiking?

The plaintiff’s argued the release violated public policy. However, the court outlined Alaska’s definition of public policy in relation to recreation activities.

In evaluating public policy arguments in the context of liability waivers, we have previously considered “[o]f particular relevance . . . the type of service performed and whether the party seeking exculpation has a decisive advantage in bargaining strength because of the essential nature of the service.”25 The type of service likely to inspire additional scrutiny on public policy grounds is “a service of great importance to the public, which is often a matter of practical necessity for some members of the public.

A release for recreational activities does not violate public policy in Alaska.

The plaintiffs also argued the “release suggests an intent to exculpate nova from liability for employee negligence.

The court said, yes it does and that is OK. However, the court also specifically identified weaknesses in the release in this area. However, the weaknesses were not enough to void the release.

Ideally NOVA’s Release would include a more detailed description of the types of negligence it covers, such as “employee negligence” and “negligent training.” But doing so is not a requirement under Donahue. We therefore conclude that the Release suggests an intent to exculpate NOVA from liability for acts of employee negligence.

The plaintiffs also argued the defendants violated their own requirements set forth in the release. The release stated:

“…the concessionaire has taken reasonable steps to provide you with appropriate equipment and/or skilled guides so you can enjoy an activity for which you may not be skilled.”

The court worked around this stating the language before and after this [stupid] section defined the risks of the activity, which should have shown the deceased that no matter what steps taken, there were still risks. The court stated, read as a whole, the release outlined numerous risks of whitewater rafting.

The plaintiff argued a case out of Florida, which also had numerous safety standards the defendant promised to meet and had not, should be controlling here. The court had been struggling through four paragraphs eventually concluded.

NOVA’s Release contains only a single half-sentence, to that effect, adequately disclaimed: “Although the concessionaire has taken reasonable steps to provide you with appropriate equipment and/or skilled guides so you can enjoy an activity for which you may not be skilled, this activity is not without risk. Certain risks cannot be eliminated without destroying the unique character of the activity.” And the release in Kerr was much broader — promising to “try to make the [premises] safe” — than NOVA’s Release, which promises merely that the company takes “reasonable steps to provide . . . appropriate equipment and/or skilled guides” while acknowledging in context that these precautions could not mitigate all the risks posed by a whitewater rafting trip. The Estate’s reliance on Kerr is thus misplaced, and we conclude that the Release does not represent or insinuate standards of safety or maintenance.

The court found the release met all the six requirements needed in Alaska to be a release and upheld the trial court’s dismissal of the plaintiff’s claims.

So Now What?

If your release, and I hope, it does, covers more than one page, make sure the pages connect or relate to each other. First, if on just one piece of paper, at the bottom of each page put in the footer, “Please Read Other Side.” If the release is more than two pages, besides the admonition to read the other side include page numbers on the document.

Write the document so it flows. You don’t have to have a heading at the top of each page. The two different headings in this case raised the argument it was two separate and unrelated documents. If the document were two different documents, then the first page should have had a signature line also, which is what the plaintiff argued. With no signature line, the first page of the document was a separate document and could not be held against the deceased.

If the writing flows, the paragraph or idea continues on the next page, then this would have been a non-issue.

Next you have to write your release to cover not only could happen but will happen, and it is all tied back to your employees. Always protect your employees and write the release broadly so it covers all the possible actions or acts an employee could take that may lead to a claim.

Never create in your release in a way for the plaintiff to sue you. Never make promises, never say you operate at a level, never say you use the best or even adequate anything. That language in this release almost was enough to defeat the release, and it was obvious the court struggled to find a very weak argument to beat this part of the plaintiff’s claims.

What do you think? Leave a comment.

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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.

 Copyright 2017 Recreation Law (720) 334 8529

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