Wroblewski v. Ohiopyle Trading Post, Inc., 2013 U.S. Dist. LEXIS 119206

Wroblewski v. Ohiopyle Trading Post, Inc., 2013 U.S. Dist. LEXIS 119206

Cari J. Wroblewski, Plaintiff, v. Ohiopyle Trading Post, Inc., Defendant.

Civil Action No. 12-0780

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

2013 U.S. Dist. LEXIS 119206

August 22, 2013, Decided

August 22, 2013, Filed

COUNSEL: [*1] For CARI J. WROBLEWSKI, Plaintiff: Emmanuel J. Argentieri, LEAD ATTORNEY, Parker McCay, Mount Laurel, NJ; Gary F. Piserchia, PRO HAC VICE, Parker McCay P.A., Mt. Laurel, NJ.

For OHIOPYLE TRADING POST, INC., Defendant: P. Brennan Hart, LEAD ATTORNEY, Jeanette H. Ho, Pietragallo, Bosick & Gordon, Pittsburgh, PA; John R. Brumberg, Pietragallo Gordon Alfano Bosick & Raspanti, LLP, Pittsburgh, PA.

JUDGES: Mark R. Hornak, United States District Judge.

OPINION BY: Mark R. Hornak

OPINION

Mark R. Hornak, United States District Judge

Cari Wroblewski brings suit against Ohiopyle Trading Post, Inc. (“Ohiopyle”) alleging that she suffered injuries to her knee as a result of Defendant’s negligence and gross negligence when she was thrown from her raft during a white water rafting trip. Ohiopyle argues that it is entitled to summary judgment because (1) Plaintiff signed a Rental Agreement which contained a provision releasing Defendant from liability (“Release”) for the very claims made in this matter and (2) Defendant did not have a duty to protect Plaintiff from being thrown from a raft and striking a rock because these are inherent risks of white water rafting. These matters, having been fully briefed by the parties and oral [*2] argument having been presented, are ripe for disposition. For the reasons which follow, Ohiopyle’s Motion for Summary Judgment is granted.

I. Background

Cari Wroblewski was 37 years old at the time of the incident that forms the basis of this lawsuit. Wroblewski Dep. 7:4-5. She holds an associate’s degree in business as well as a bachelor’s degree in accounting. Id. at 8:18-9:19. In April 2010, two months prior to the trip at issue in this case, Plaintiff went white water rafting on the Salt River in Arizona where she signed a rental agreement with a release and was informed that white water rafting could be dangerous and that she could fall out of the raft. Id. 16:21-17:7; 20:14-21:9.

One of Plaintiff’s friends, Steve Rose, made arrangements to rent equipment from Ohiopyle for a rafting trip on the Youghiogheny River with a group of their friends on June 11, 2010. ECF No. 21 ¶ 2; ECF No. 25 ¶ 2. Joel Means, one of the owners of Ohiopyle, testified in his deposition that the lower section of the Youghiogheny River is considered “the intermediate white water section of the River” and consists of Class I through Class III rapids with borderline Class IV at certain levels. Means Dep. 14:8-15:1. [*3] Plaintiff had been told, not by an Ohiopyle employee but most likely by one of her friends in the group, that the rapids on the river would be mild, level two and three rapids. Wroblewski Dep. 37:6-23. 1

1 “Q: What made you think before then that the rapids were levels two or three?

A: From what I had been told they were supposed to be rather mild rapids.

Q: Who told you that they were rather mild rapids?

A: I don’t recall.

Q: It wasn’t anyone from Ohiopyle Trading Post; was it?

A: No

Q: Was it one of the people in your group that went white water rafting that day?

A: Most likely.” Wroblewski Dep. 37:6-23.

On the morning of June 11, 2010, Means noticed that the river was “up and brown” from rain the night before, and that the water level had risen from 2.5 to 3.98 feet. Means Dep. 19:2-11. When the river’s water level reaches four (4) feet, rafters are required by state regulations to have an experienced guide accompany them on their rafting trip. 2 Id. 60:3-6. Ohiopyle is permitted to provide guided white water rafting tours when the level of the river is between four (4) and ten (10) feet. ECF No. 31. Means testified that the river level being of above average flow could make the rafting trip [*4] more difficult, but that the river is more dangerous at low levels than at high levels. Means Dep. 47:18-22.

2 At oral argument, Plaintiff’s counsel persistently argued not that the river level actually was four (4) feet at the time at issue, but that the Court should treat it as if it were. The Court knows of no record basis to do so.

Plaintiff and her friends traveled to the Youghiogheny River for the white water rafting trip on the morning of June 11, 2010. ECF No. 21 ¶ 1; ECF No. 25 ¶ 1. Upon arriving at the River, Plaintiff went to the bathroom for “quite a while” while the rest of her group started to get their rented equipment. ECF No. 25 at 2, ¶ 1; Wroblewski Dep. 31:8-19. Means informed the rest of Plaintiff’s group that the level of the river was above average flow that day and therefore the river that day was a “real white water river” and not a “float trip.” Means Dep. 16:16-17. Means told Steve Rose that if he and the others in the group no longer wished to rent equipment, Ohiopyle would provide the group with a guided whitewater rafting tour at a discounted rate of $40 per person rather than the usual price of $60 per person (a non-guided rafting trip costs about $20 per [*5] person). Id. 38:9-14; 46:21-47:8. Plaintiffs group declined the offer of a discounted guided rafting trip. Means also instructed his employees that day to “make sure [the group understood] what game they’re about to play,” in reference to the river. Id. 39:11-15. Presumably because she was in the bathroom, Plaintiff never heard from Means his advice as to the conditions of the river or offer of a guided tour. Wroblewski Dep. 32:2-12.

When Plaintiff was finished in the bathroom, she went to get her equipment from Ohiopyle and was “in a rush” because her friends had gotten a head start. ECF No. 25 at 2, ¶¶ 2-3; Wroblewski Dep. 31:8-19. An Ohiopyle employee handed Plaintiff a Rental Agreement and told her that she “needed to sign the form and meet up with [her] group because they were getting their gear.” ECF No. 25 at 2, ¶ 5; Wroblewski Dep. 76:6-21. Plaintiff testified that “[t]hey hurried me along” and she was not given an opportunity to read the Rental Agreement. Wroblewski Dep. 78:7; 76:22-23. She also testified that the Ohiopyle employee “didn’t ask me to read it, they just gave it to me and said please sign this and catch up with your group, they’re already getting their stuff.” [*6] Id. 78:3-13. Plaintiff signed Ohiopyle’s Rental Agreement which included a waiver and release of liability provision (“Release”). ECF No. 19-5. 3

3 Plaintiff was not the last person in her group to sign the Rental Agreement, as her signature is the second to last signature on the Rental Agreement. ECF No. 19-5.

After receiving her rafting equipment, Plaintiff and her group received a safety briefing by an Ohiopyle employee before being sent to the river to embark on their trip. ECF No. 25 ¶ 8; Wroblewski Dep. 32:13-16. In the safety briefing, Plaintiff was warned that white water rafting can be dangerous, and it was possible that participants could fall out of the raft. Wroblewski Dep. 33:6-12.

After rafting through the first set of river rapids, Plaintiff grew concerned that the rapids were not level two or three. Id. 37:6-10. Plaintiff stated that she was concerned that the river was more than she could handle, and that she considered getting off of the river but “[t]here was no place to get off.” Id. 40:5-16. Plaintiff did not express her concerns to any others on the rafting trip. Id. 40:10-1. Near the end of the whitewater rafting trip, Plaintiff was thrown from the raft. ECF No. [*7] 21 ¶ 5; ECF No. 25 ¶ 5; Wroblewski Dep. 41:12-20. According to Plaintiff, she was dragged under water and struck her knee on a rock, sustaining serious injuries. ECF No. 21 ¶ 6; ECF No. 25 ¶ 6; Wroblewski Dep. 41:21-42:1.

Plaintiff filed this action against Defendant in June 2012. ECF No. 1. Defendant moved for summary judgment. ECF Nos. 19, 20, 21. Plaintiff filed her response, ECF Nos. 24, 25, and Defendant filed a reply as well as a supplement. ECF Nos. 26, 27, 31. For the reasons discussed below, Defendant’s Motion for Summary Judgment is granted.

II. Standard

Summary judgment is appropriate when “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). The parties must support their position by “citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials.” Fed. R. Civ. P. 56(c)(1)(A). In other words, summary judgment may be granted only if [*8] there exists no genuine issue of material fact that would permit a reasonable jury to find for the non-moving party. See Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 250, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986).

In reviewing the evidence, the court draws all reasonable inferences in favor of the non-moving party. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S. Ct. 2097, 147 L. Ed. 2d 105 (2000); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986); Huston v. Procter & Gamble Paper Prod. Corp., 568 F.3d 100, 104 (3d Cir.2009) (citations omitted). It is not the court’s role to weigh the disputed evidence and decide which is more probative, or to make credibility determinations. See Anderson, 477 U.S. at 255; Marino v. Indus. Crating Co., 358 F.3d 241, 247 (3d Cir. 2004); Boyle v. Cnty. of Allegheny, 139 F.3d 386, 393 (3d Cir. 1998). “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson, 477 U.S. at 247-48 (1986). An issue is “genuine” if a reasonable jury could possibly hold in the non-movant’s favor with regard to that issue. See id. “Where the record taken as a whole could not lead a reasonable trier [*9] of fact to find for the nonmoving party, there is no ‘genuine issue for trial.'” Matsushita, 475 U.S. at 587; Huston, 568 F.3d at 104.

III. Discussion

Ohiopyle advances two arguments in support of its summary judgment motion. First, Defendant submits that the Rental Agreement form signed by Plaintiff contained a valid and enforceable release of liability in favor of Defendant, releasing Defendant from liability for the very claims made in this matter. Secondly, Defendant argues that it did not have a duty to protect Plaintiff from being thrown from a raft and striking a rock because these are inherent risks of white water rafting, and this Defendant should not have any liability.

On June 11, 2010, prior to white water rafting, Plaintiff signed a two-page document that contains a release of liability and is titled “RENTAL AGREEMENT” in capital letters at the top of its first page. ECF No. 19-5. The top half of the first page is a form to be filled out with information relating to the primary renter and the white water rafting equipment to be rented. Id.

The bottom half of the first page begins with the header “TERMS AND CONDITIONS,” with thirteen (13) paragraphs listed in three columns [*10] under this header. Id. The actual language releasing Ohiopyle from liability regardless of its own negligence is listed as paragraph nine (9) in this section. Id. The font of the Release language is the same size as the other paragraphs listed under “TERMS AND CONDITIONS” but, unlike the other paragraphs, is written in all capital letters. Id. The exculpatory clause consequently falls on the bottom half of the front side of the first page, in both the left and middle columns and, by itself, makes up approximately half of the language listed under “TERMS AND CONDITIONS.” Id.

Paragraph nine (9) contains the following language:

9. READ CAREFULLY THE FOLLOWING WAIVER AND RELEASE OF LIABILITY: HAVING RECEIVED A SAFETY TALK BY A MEMBER OP LESSOR’S STAFF, AND HAVING READ THE SAFETY PRECAUTIONS AND RECOMMENDATIONS ON THE REVERSE SIDE HEREOF, LESSEE(S) HEREBY ACKNOWLEDGE THAT HE/SHE/THEY FULLY UNDERSTAND(S): (a) THAT OUTDOOR RECREATIONAL ACTIVITIES HAVE INHERENT RISKS, DANGERS, AND HAZARDS, AND THAT SUCH EXISTS IN MY USE OF THE EQUIPMENT ABOVE DESCRIBED AND MY PARTICIPATION IN WHITE WATER RAFTING AND RELATED ACTIVITIES; (b) THAT MY PARTICIPATION IN SUCH ACTIVITIES AND/OR THE USE OF SUCH EQUIPMENT [*11] MAY RESULT IN INJURY OR ILLNESS, INCLUDING, BUT NOT LIMITED TO, BODILY INJURY, DISEASE, STRAINS, FRACTURES, PARTIAL AND OR TOTAL PARALYSIS, DEATH, OR OTHER AILMENTS THAT COULD CAUSE SERIOUS DISABILITY; (c) THAT SAID RISKS AND DANGERS MAY BE CAUSED BY (i) THE NEGLIGENCE OF THE OWNERS, EMPLOYEES, OFFICERS, OR AGENTS OF LESSOR, (ii) THE NEGLIGENCE OF PARTICIPANTS, (iii) THE NEGLIGENCE OF OTHERS, (iv) ACCIDENTS, (v) BREACHES OF CONTRACT, AND (vi) THE FORCES OF NATURE OR OTHER CAUSES; (d) THAT RISKS AND DANGERS MAY ARISE FROM FORESEEABLE OR UNFORESEEABLE CAUSES, INCLUDING, BUT NOT LIMITED TO, GUIDE DECISION MAKING, INCLUDING THAT A GUIDE MAY MISJUDGE TERRAIN, WEATHER, TRAIL OR RIVER ROUTE LOCATION; WATER LEVEL; FALLING OUT OF OR DROWNING WHILE IN A RAFT, CANOE, OR KAYAK; AND SUCH OTHER RISKS, HAZARDS. AND DANGERS THAT ARE INTEGRAL TO RECREATIONAL ACTIVITIES THAT TAKE PLACE IN A WILDERNESS, OUTDOOR OR RECREATIONAL ENVIRONMENT; AND (e) THAT BY MY PARTICIPATION IN THESE ACTIVITIES AND/OR USE OF THE EQUIPMENT ABOVE DESCRIBED, I HEREBY ASSUME ALL RISKS, DANGERS, AND RESPONSIBILITY FOR ANY LOSSES AND/OR DANGERS, WHETHER CAUSED IN WHOLE OR IN PART BY THE NEGLIGENCE OR OTHER CONDUCT OF THE OWNERS, [*12] AGENTS, OR EMPLOYEES OF LESSOR OR ANY OTHER PERSON.

AND FURTHER, ON BEHALF OF MY PERSONAL REPRESENTATIVES, SUCCESSORS, HEIRS, AND ASSIGNS, I DO HEREBY VOLUNTARILY AGREE TO RELEASE, WAIVE, DISCHARGE, HOLD HARMLESS, DEFEND, AND INDEMNIFY LESSOR AND ITS OWNERS, AGENTS, OFFICERS, AND EMPLOYEES FROM ANY AND ALL CLAIMS, ACTIONS, OR LOSSES FOR BODILY INJURY, PROPERTY DAMAGE, WRONGFUL DEATH, LOSS OF SERVICES, OR OTHERWISE WHICH MAY ARISE OUT OF MY USE OF THE EQUIPMENT ABOVE DESCRIBED, OR MY PARTICIPATION IN ANY ACTIVITIES INVOLVING SAID EQUIPMENT. I SPECIFICALLY UNDERSTAND THAT I AM RELEASING, DISCHARGING, AND WAIVING ANY CLAIMS OR ACTIONS THAT I MAY HAVE PRESENTLY OR IN THE FUTURE FOR THE NEGLIGENT ACTS OR OTHER CONDUCT BY THE OWNERS, AGENTS, OFFICERS, OR EMPLOYEES OF LESSOR.

I HAVE READ THE ABOVE WAIVER AND RELEASE, AND, BY SIGNING THIS RENTAL AGREEMENT, AGREE THAT IT IS MY INTENTION TO EXEMPT AND RELIEVE LESSOR AND ITS OWNERS, AGENTS, OFFICERS, AND EMPLOYEES FROM LIABILITY FOR PERSONAL INJURY, PROPERTY DAMAGE, OR WRONGFUL DEATH CAUSED BY NEGLIGENCE OR ANY OTHER CAUSE.

Id.

At the end of the “TERMS AND CONDITIONS” section, at the beginning of the right column, is the following language:

IN WITNESS [*13] WEREOF, and intending to be legally bound hereby, the undersigned Lessee(s) hereby certify that he/she/they have read and understood the terms and conditions of this Rental Agreement, and has/have affixed his/her/their hand(s) and seal(s) hereto on the dated indicated.

Id. Directly underneath this language, and in the column next to the exculpatory clause, multiple lines were provided where Plaintiff and the members of her party signed their names. Id. Plaintiff’s signature is the second to last signature listed on the form. Id.

The second page of the Rental Agreement has two sections. Id. The first section includes the header “SAFETY PRECAUTIONS” and the second section is titled “RECOMMENDATIONS.” Id. Both sections list a number of precautions and recommendations for how white water rafters should conduct themselves while on the river. Id.

The Defendant argues that the Release contained in the Rental Agreement is valid and enforceable. ECF Nos. 19, 20, 26. Plaintiff on the other hand asserts that the Release is unenforceable because its language is not sufficiently conspicuous to alert a party that it serves to release Defendant from liability and that Plaintiff did not actually assent [*14] to the terms of the Rental Agreement. ECF No. 24. To support her contentions, Plaintiff points out that the document was titled “Rental Agreement” and therefore does not provide adequate notice to signors that it is a release of liability. Id. at 7-8. Furthermore, the exculpatory language is placed at the bottom left of the form and not directly above the signature line, is written in small font, and does not appear until paragraph 9 of the form. Id. Plaintiff also argues that no one specifically informed her that she was entering into a contract that would affect her legal rights, and that she was “rushed along” by Defendant’s employees. Id.

The parties agree that this Court must consider Pennsylvania law and apply it in this case. See Lin v. Spring Mountain Adventures, Inc., 2010 U.S. Dist. LEXIS 136090, 2010 WL 5257648, at *3 (E.D. Pa. Dec. 23, 2010). Applying Pennsylvania law, the Pennsylvania Supreme Court explained that:

It is generally accepted that an exculpatory clause is valid where three conditions are met. First, the clause must not contravene public policy. Secondly, the contract must be between persons relating entirely to their own private affairs and thirdly, each party must be a free bargaining agent [*15] to the agreement so that the contract is not one of adhesion. . . . once an exculpatory clause is determined to be valid, it will, nevertheless, still be unenforceable unless the language of the parties is clear that a person is being relieved of liability for his own acts of negligence. In interpreting such clauses we listed as guiding standards that: 1) the contract language must be construed strictly, since exculpatory language is not favored by the law; 2) the contract must state the intention of the parties with the greatest particularity, beyond doubt by express stipulation, and no inference from words of general import can establish the intent of the parties; 3) the language of the contract must be construed, in cases of ambiguity, against the party seeking immunity from liability; and 4) the burden of establishing the immunity is upon the party invoking protection under the clause.

Chepkevich v. Hidden Valley Resort, L.P., 607 Pa. 1, 2 A.3d 1174, 1189 (Pa. 2010) (citations omitted).

Plaintiff primarily relies on three release of liability cases to support her contention that the Release is in this instance unenforceable: Beck-Hummel v. Ski Shawnee, Inc., 2006 PA Super 159, 902 A.2d 1266 (Pa. Super. Ct. 2006); [*16] Chepkevich v. Hidden Valley Resort, L.P., 607 Pa. 1, 2 A.3d 1174 (Pa. 2010), and Lin v. Spring Mountain Adventures, Inc., No. 10-333, 2010 U.S. Dist. LEXIS 136090, 2010 WL 5257648 (E.D. Pa. Dec. 23, 2010). 4

4 Plaintiff does not argue that the release in this instance is facially invalid.

In Beck-Hummel, the plaintiff brought a negligence claim for injuries she received from colliding with a barrier wall while snow tubing at the defendant’s resort. 2006 PA Super 159, 902 A.2d 1266. There, the release was printed on the backside of a lift ticket that the plaintiff’s husband purchased and had given to plaintiff. Id. at 1267, 1270-71. The release contained hard to read and inconspicuous language, it did not require a signature or acknowledgment, and was printed on the portion of the ticket that would be folded out of sight of the user. Id. at 1269, 1273-1274. The record also revealed the lift ticket was not given to the Plaintiff directly by the operator. The Pennsylvania Superior Court held that plaintiff’s assent to the terms of the disclaimer was not clearly established and therefore it could not hold as a matter of law that the release for snow tubing injuries was enforceable. Id. at 1275.

In Chepkevich, plaintiff skier, who had signed a release [*17] prior to skiing, asked a lift operator to stop a lift so that she and her 6-year-old nephew could board the lift. Although the lift operator agreed to do so, when the lift came behind the plaintiff and her nephew, the operator failed to stop the lift. The skier sued the ski resort for negligence for injuries she received as a result of falling from the ski lift. The release in this case was printed on a single page and titled “RELEASE FROM LIABILITY.” 2 A.3d at 1192. The language releasing liability was in the same font as the rest of the release, included the term “negligence”, and “specifically noted that riding the ski lift is a risky activity.” Id. The plaintiff argued that she did not read the exculpatory language nor did anyone orally inform her that she was entering into such an agreement. Id. at 1180-81. The court held that the release was valid, enforceable, and “clearly encompassed the risk at issue . . . [and] clearly spelled out the parties’ intention to release [defendant] from liability for injuries . . . regardless of any negligence on the part of the [defendant].” Id. at 1195. The court therefore upheld the grant of summary judgment in favor of the defendant. Id.

Finally [*18] in Lin, the plaintiff sued for serious injuries sustained from skiing when she lost control and fell into a snow making machine that was not properly padded. The document containing the release provision was titled “EQUIPMENT RENTAL FORM AND RELEASE FROM LIABILITY.” 2010 U.S. Dist. LEXIS 136090, 2010 WL 5257648, at *2. On the front page of the release was a capitalized, blocked section in the center of the page, above the signature line, instructing the reader to “PLEASE READ THE AGREEMENT ON THE BACK OF THIS FORM BEFORE SIGNING. IT RELEASES U.S. FROM CERTAIN LIABILITY.” Id. Directly between the instruction to read the back of the release and the signature line was the following statement: “I, the undersigned, have carefully read and understood the Acceptance of Risk and Liability Release on the back of this paper.” Id. The exculpatory clause was located on the back of the form and stated multiple times that it was a release from liability. 2010 U.S. Dist. LEXIS 136090, [WL] at *2. The court found that even though the plaintiff had not read the release language, that she “was a voluntary signatory to a full-sized contract.” 2010 U.S. Dist. LEXIS 136090, [WL] at *5. The court held that the exculpatory clause was enforceable and granted defendant’s motion for summary judgment. [*19] 2010 U.S. Dist. LEXIS 136090, [WL] at *9.

This case is not analogous to Beck-Hummel, as Plaintiff contends. Unlike Beck-Hummel, Plaintiff “was not a mere recipient of a release printed on a ticket, but was a voluntary signatory to a full-sized contract.” Lin, 2010 U.S. Dist. LEXIS 136090, 2010 WL 5257648, at *5. Plaintiff signed the Rental Agreement herself, and her signature is immediately preceded by instructions guiding her to read the entirety of the form and confirming that she had done so. Moreover, Plaintiff was provided a full-sized contract in which the Release was set forth on its front side, as opposed to a small unreadable ticket that she did not sign and in which the operative language was written on the reverse side.

Moreover, the language of the Release, construed strictly against Defendant, plainly expresses the intention of the parties to release Defendant from liability for future injury. The paragraph mentions “negligence” five (5) times and that it is a release of liability three (3) times. ECF No. 19-5. 5 Specifically, the first sentence of paragraph 9 asks the signer to carefully read the “WAIVER AND RELEASE OF LIABILITY.” Id.

5 In fact, exculpatory clauses may bar suits based on negligence even where the clause does not specifically [*20] mention the word “negligence” at all. Chepkevich, 2 A.3d at 1193. “It strains common sense to suggest that releases that fail to mention the word ‘negligence’ should consistently be interpreted as barring suits based on negligence claims, while a release that clearly states that suits are barred ‘regardless of negligence’ would not bar such suits.” Id.

Part of Plaintiff’s argument is that she was not personally informed by Ohiopyle of the elevated water level prior to her signing the Rental Agreement. However, the language of the Release explicitly warned of the same things that Defendant’s employees cautioned the rest of Plaintiff’s group. Specially, the Release warns of “bodily injury” from “risks and dangers [that] may arise from foreseeable or unforeseeable causes, including . . . water level” and “falling out of . . . a raft.” Id. Furthermore, the clause stated that by signing the agreement, the signor “assume[s] all risks, dangers, and responsibility for any losses and/or dangers.” Id. In fact, the clause even warns of “total paralysis” and “death.” Id. This paragraph goes on to explain that the signor “specifically understand[s] that I am releasing, discharging, and waiving any [*21] claims or actions that I may have presently or in the future for the negligent acts or other conduct by” the Defendant. Id. Furthermore, “it is my intention to exempt and relieve lessor . . . from liability for personal injury . . . caused by negligence.” Id. It is also important to note that prior to her trip to Ohiopyle, Plaintiff admittedly went white water rafting in Arizona where she signed a rental agreement with a release, and was informed that white water rafting could be dangerous and that she could fall out of the raft. Wroblewski Dep. 16:21-17:7; 20:14-21:9. Moreover, in Ohiopyle’s safety briefing, right before Plaintiff boarded the raft, Plaintiff and her group were warned that white water rafting can be dangerous, and it was possible that she could fall out of the raft. Id. 33:6-12.

The fact that the exculpatory language was contained in the bottom half of the first page, not listed until paragraph 9, and not directly above the signature line does not make it unenforceable, either generally or in this case. While the terms and conditions are in a slightly smaller font than the upper half of the form, they are still clearly readable. Moreover, paragraph 9 is the only paragraph [*22] written entirely in capital letters. Taken as a whole, using a strict (but common sense) interpretation, it is clear the form in question releases the Defendant from liability for injuries such as those sustained by Plaintiff, even if due to Defendant’s own negligence. 6

6 Lahey v. Covington, 964 F. Supp. 1440, 1442 (D. Colo. 1996) is factually similar to this case in that there, the defendant failed to personally inform plaintiff of heightened water level when the plaintiff took a white water rafting trip through defendant’s company. The Arkansas Headwater Recreation Area, a white water rafting regulatory group, recommended against any rafting when the water flow measured 4.0 feet high or more (the same cut-off measurement for rafts without guides at Ohiopyle). The defendant also had a company policy to not take people rafting when the water was four feet or higher. On the day in question, the river measured 3.8 feet but, similar to this case, the defendant did not inform the plaintiff that the water level was “high” that day. Plaintiff signed a release of liability agreement prior to the trip and was injured after being tossed into the river. The court held that the exculpatory portion [*23] of the release agreement was valid and granted defendant’s motion for summary judgment on plaintiff’s negligence claim. Id. at 1446.

Plaintiff contends that summary judgment is also improper because whether she knowingly signed the Rental Agreement and assented to its terms is a question of fact for the jury. ECF No. 24. Plaintiff argues that she did not read the Release and that employees of Defendant did not directly warn or advise her as to the conditions of the river or offer her a guided tour, nor did they orally inform her of what the form stated or ask her to read the form, and that they rushed and “hurried [her] along”, and therefore she did not assent to the terms of the agreement. Id.

Plaintiff voluntarily chose to engage in the sport of white water rafting purely for recreational purposes. Plaintiff signed the Release; she was not compelled, as a legal matter, to sign it, but chose to sign it so that she could go on the white water rafting trip with her group. See Tayar v. Camelback Ski Corp., Inc., 616 Pa. 385, 47 A.3d 1190, 1197 (Pa. 2012) (“[R]ecreational sporting activities may be viewed differently in the context of exculpatory agreements, as each party is free to participate, or [*24] not, in the activity, and, therefore, is free to sign, or not, the release form.”); see also Chepkevich, 607 Pa. 1, 2 A.3d 1174 (release enforceable even though plaintiff had not read agreement); Lin, 2010 U.S. Dist. LEXIS 136090, 2010 WL 5257648 (same). There is no evidence that plaintiff sought to negotiate the terms of the Release or asked for additional time to read it, and to the extent she was “compelled” it was a compulsion arising solely from her personal desire to meet up with her group.

Under Pennsylvania law, the failure to read a contract does not nullify the contract’s validity. Standard Venetian Blind Co. v. Am. Empire Ins. Co., 503 Pa. 300, 469 A.2d 563, 566 (Pa. 1983) (“[I]n the absence of proof of fraud, failure to read [the contract] is an unavailing excuse or defense and cannot justify an avoidance, modification or nullification of the contract or any provision thereof.”); see also Arce v. U-Pull-It Auto Parts, Inc., No. 06-5593, 2008 U.S. Dist. LEXIS 10202, 2008 WL 375159, at *5-9 (E.D. Pa. Feb. 11, 2008) (written release found to be enforceable even when the agreement was in English but the plaintiff only read and spoke Spanish, noting that the “[p]laintiff cannot argue that the release language was inconspicuous or somehow hidden from his attention. [*25] . . . Nor did Defendant have an obligation to verify that [p]laintiff had read and fully understood the terms of the document before he signed his name to it.”). 7

7 See also In re Greenfield Estate, 14 Pa. 489, 496 (Pa. 1850) (“[i]f a party, who can read . . . will not read a deed put before him for execution; or if, being unable to read, will not demand to have it read or explained to him, he is guilty of supine negligence, which . . . is not the subject of protection, either in equity or at law.”).

This rule has been applied time and again in the context of recreational activities in which a party signed a pre-injury release of liability. For instance, the Pennsylvania Superior Court affirmed an order granting summary judgment in favor of the owner of a racetrack where the plaintiff had signed an agreement releasing all claims against the racetrack before he was injured. Seaton v. E. Windsor Speedway, Inc., 400 Pa. Super. 134, 582 A.2d 1380 (Pa. Super. Ct. 1990). The Superior Court held that the signed release was enforceable even though plaintiff claimed that he had not read it, did not know that he was signing a release, and did not have time to read the document because of a long line of people behind [*26] him. Id. at 1383 (“His explanation that he did not read it does not, in the absence of fraud or a confidential relationship, extricate him from its operation.”). See also Lin, 2010 U.S. Dist. LEXIS 136090, 2010 WL 5257648, at *6 (“[i]t is a well established rule under Pennsylvania law that failure to read a contract does not relieve a party of their obligation under such contract that they sign, and such parties will be bound by the agreement without regard to whether the terms were read and fully understood.”); Martinez v. Skirmish, U.S.A., Inc., No. 07-5003, 2009 U.S. Dist. LEXIS 51628, 2009 WL 1676144, *7 (E.D. Pa. June 15, 2009) (release enforceable as to negligence for injury to plaintiff during paintball game, noting that plaintiff was accompanied by friends “who could have explained the Waiver & Release to him, if he had asked them to do so. . . . Consequently, [plaintiff’s] failure to read that document cannot constitute a defense to the enforceability of the Waiver & Release.”); Schillachi v. Flying Dutchman Motorcycle Club, 751 F. Supp. 1169, 1174-75 (E.D. Pa. 1990) (release that plaintiff signed before being injured while racing all-terrain vehicle was enforceable even though plaintiff failed to read it because “[t]o accept plaintiff’s [*27] argument that there is such a duty [on the part of the defendant] to inform in this case would essentially abrogate the law of Pennsylvania regarding plaintiff’s duty to read.”). 8

8 In Doe v. Cultural Care, Inc., No. 10-11426-DJC, 2011 U.S. Dist. LEXIS 28226, 2011 WL 1048624, at *4-5 (D. Mass. Mar. 17, 2011), the court held that a release signed by plaintiff was enforceable even if the defendant had rushed her. There, the court explained that

“[t]he fact that [plaintiff] did not take the time to read the terms and conditions of the Agreement because she felt hurried by [defendant] does not change the analysis. [Plaintiff] does not dispute that she executed the Agreement or that it contains the Release. She disputes that she agreed to the terms and conditions, that the Release discharges Defendants from liability or bars her claims since she had no knowledge of the Release and was rushed into executing the Agreement based on Defendants’ representations.”

Id.

Similar to the cases discussed above, Plaintiff voluntarily participated in the white water rafting trip. “The signer is under no compulsion, economic or otherwise, to participate, much less to sign the exculpatory agreement, because it does not relate to essential [*28] services, but merely governs a voluntary recreational activity.” Chepkevich, 2 A.3d at 1191. Plaintiff could have requested additional time to read the agreement, or she could have chosen to not sign the Release and not go white water rafting. See Martinez, 2009 U.S. Dist. LEXIS 51628, 2009 WL 1676144, at *7 (argument that plaintiff had no choice but to sign release because he had pre-paid for the paintball activity was unavailing for the reason that it was a recreational activity where participation was voluntary). Holding that Defendant had a duty to orally inform Plaintiff of what she was signing, or holding a release unenforceable because Plaintiff failed to read the contract containing a release of liability she signed because she felt rushed, would turn this rule on its head.

The Court considers, as it must, all of the relevant circumstances set out in the record, Lin, 2010 U.S. Dist. LEXIS 136090, 2010 WL 5257648, at *6, and is unable to agree with Plaintiff that the Rental Agreement constituted (as a matter of law) an insufficient effort on the part of Ohiopyle to inform her of the fact that by signing that Agreement, she was giving up any right she might have to sue for damages arising from injuries caused even by negligence. In five [*29] (5) different places the Release mentions “negligence” and states that is a release of liability in three (3) places. ECF 19-5. Similar to Chepkevich, “[a]lthough the outcome in this case was certainly unfortunate, the risk was not so unexpected, or brought about in so strange a manner, as to justify placing this injury beyond the reach of the plain language of the Release, which specifically noted” that white water rafting is a risky activity in which water levels can increase or decrease and that you can fall out of the raft. Chepkevich, 607 Pa. 1, 2 A.3d 1174, 1194. Furthermore, between her previous white water rafting trip in Arizona and the safety briefing she was admittedly provided by Ohiopyle, Plaintiff was aware that white water rafting was dangerous and that falling out of a raft was an actual danger of the activity. Moreover, Plaintiff’s argument that there is an issue of material fact as to whether she assented to the terms of the agreement because she felt “rushed” by Defendant, is insufficient to deem the agreement unenforceable in light of her duty under Pennsylvania law to read a contract.

The Release, even when construed against Defendant, clearly spelled out the parties’ intention [*30] to release Defendant from liability and encompassed the risk of varying water levels and falling out of the raft. Consequently, the Release meets the enforceability test under Pennsylvania law. Plaintiff brings a claim for negligence. Negligence is explicitly encompassed within the Release, and Defendant’s Motion for Summary Judgment is granted. 9

9 Because the signed Rental Agreement precludes Plaintiff from bringing a claim of negligence against Defendant, the Court need not decide whether the incident at issue in this case was an inherent risk of white water rafting.

IV. Conclusion

For the foregoing reasons, Defendant’s Motion for Summary Judgment is granted. An appropriate Order will issue.

/s/ Mark R. Hornak

Mark R. Hornak

United States District Judge

Dated: August 22, 2013


Negligence suit over injuries from falling out of a raft that was rented from outfitter. Release was part of raft rental contract.

Federal District court grant’s motion for summary judgment on release language in a rental agreement with multiple signatures from renters on one page. Scary!

Wroblewski v. Ohiopyle Trading Post, Inc., 2013 U.S. Dist. LEXIS 119206

Date of the Decision: August 22, 2013

Plaintiff: Cari J. Wroblewski

Defendant: Ohiopyle Trading Post, Inc.

Plaintiff Claims:

Defendant Defenses: release in raft rental agreement

Holding: for the defendant

The plaintiff had recently gone rafting on the Salt River in Arizona. Two months later she with her friends rented a raft and equipment from the defendant to a raft the Youghiogheny River. The Youghiogheny River is a Class III run although it allegedly borders on Class IV at certain water levels.

Once the water level rises above a certain level the defendant is allowed to operate as a guide service and run river guides with its customers.

While the plaintiff was taking a long time in the restroom, the rest of her group talked to the defendant’s employees about the high water and declined a guided service. The normal price of a guided trip is $60 per person. The rental cost is $20 per person. The defendant offered to add a guide to the trip for $40 per person, a $20 per person discount from the regular price.

After leaving the restroom the plaintiff testified that she was rushed to sign the release and get her “stuff.” The court took note that the plaintiff was not the last person to sign the release. “Plaintiff was not the last person in her group to sign the Rental Agreement, as her signature is the second to last signature on the Rental Agreement.”

After signing the release and getting her gear the plaintiff received a safety briefing and then was sent down the river. During one of the final rapids, the plaintiff fell out of the boat and “was dragged under water and struck her knee on a rock, sustaining serious injuries.”

The case was filed in Federal District Court, which is the trial court, and the opinion is the court’s which was used to grant the defendants motion for summary judgment.

Summary of the case

The court pointed out several issues that the court, and the plaintiff identified. The release started half-way down the page and was titled “Terms and Conditions.” Multiple lines were provided where the parties all signed the same document. Additional legal information was found under section identified as “SAFETY PRECAUTIONS” and “RECOMMENDATIONS.” The overall title of the document was “Rental Agreement.” The court did point out that the font used in the form was small but sufficient.

The plaintiff argued the release was not enforceable because:

…Plaintiff points out that the document was titled “Rental Agreement” and therefore does not provide adequate notice to signors that it is a release of liability. Furthermore, the exculpatory language is placed at the bottom left of the form and not directly above the signature line, is written in small font, and does not appear until paragraph 9 of the form. Plaintiff also argues that no one specifically informed her that she was entering into a contract that would affect her legal rights, and that she was “rushed along” by Defendant’s employees.

The court then went through the cases in Pennsylvania that had thrown the release out. However, in each case this court found the facts were different or the case was not applicable to this one.

The statement of the court as to the relationship between a party signing a release for recreational activities and one for other purposes sets recreational releases apart.

Plaintiff voluntarily chose to engage in the sport of white-water rafting purely for recreational purposes. Plaintiff signed the Release; she was not compelled, as a legal matter, to sign it, but chose to sign it so that she could go on the white-water rafting trip with her group. (“[R]ecreational sporting activities may be viewed differently in the context of exculpatory agreements, as each party is free to participate, or not, in the activity, and, therefore, is free to sign, or not, the release form.”)

The court also took on issues the plaintiff did not identify, which is whether or not the plaintiff attempted to negotiate the release terms. As it has been pointed out several times in other cases, the opportunity or not to negotiate an activity without signing a release or to change a release may void the release.

There is no evidence that plaintiff sought to negotiate the terms of the Release or asked for additional time to read it, and to the extent she was “compelled” it was a compulsion arising solely from her personal desire to meet up with her group.

The court also eliminated the plaintiff’s argument she did not understand what she was signing in one sentence. “Under Pennsylvania law, the failure to read a contract does not nullify the contract’s validity.” The court stated the “Plaintiff could have requested additional time to read the agreement, or she could have chosen to not sign the Release and not go white-water rafting.”

The court held the release stopped the plaintiff’s claims.

The Release, even when construed against Defendant, clearly spelled out the parties’ intention to release defendant from liability and encompassed the risk of varying water levels and falling out of the raft. Consequently, the Release meets the enforceability test under Pennsylvania law. Plaintiff brings a claim for negligence. Negligence is explicitly encompassed within the Release, and Defendant’s motion for Summary Judgment is granted.

So Now What?

Remember a release that is involved in litigation is one that is poorly written. Well written releases do not end up in front of judges and juries. This court upheld the release but in doing so pointed out several issues that in other jurisdictions or maybe in Pennsylvania with different fact patterns would have held the other way.

First, the document was a rental agreement. It was labeled as such and most of the information the court pointed out was based on rental information. You may be able to combine a rental agreement and a release in one document; however, you should clearly label the document as such.

What was amazing is in the day and age when this accident happened, 2010, that a recreation business was still using a sign-in sheet as a release. You don’t buy a house on the same document as your neighbor used. Why would you risk your business by using a document signed by multiple people that defend against a multi-million dollar lawsuit?

Add to that the print size, the release language divided into three different columns in the document and the plaintiff’s arguments that she was hurried; this is a thank heaven’s decision.

What do you think? Leave a comment.

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

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#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, Youghiogheny River, Ohiopyle Trading Post, Ohiopyle, Whitewater Rafting, Rafting, Raft Rental, Release,

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Summer 2013 Commercial Fatalities 8/26/13

This list is not guaranteed to be accurate. The information is found from web searches and news dispatches. Those references are part of the chart. If you have a source for information on any fatality please leave a comment or contact me. Thank you.

If this information is incorrect or incomplete please let me know.  This is up to date as of August 14, 2013. Thanks.

Rafting, Mountaineering and other summer sports are probably still safer than your kitchen or bathroom. This information is not to scare you away from any activity but to help you understand the risks and to study.

Red is a probable death due to medical issues.

Dark blue is a death of an employee while working.

Date Activity State Location What Age Sex Home Ref
5/27 Whitewater Rafting AK

Kenai Peninsula’s Six Mile Creek, Zig Zag Rapid

washed out of a boat filled with clients and a guide as they entered rapid

47 M Cambridge, UK

http://rec-law.us/12iqD0n

6/8 Whitewater Rafting TN Chattooga River boat flipped 58 M Nashville, TN

http://rec-law.us/11GgUSN & http://rec-law.us/14qmZ7N

6/20 Mountaineering WY Lower Saddle of the Grand Teton slipped on snowfield and slid 55 M Colorado Springs, CO

http://rec-law.us/11wr9wp

7/3 Summer Camp CA Camp Tawonga Tree fell 21 F Santa Cruz, CA http://rec-law.us/16RpK3K & http://rec-law.us/124h7TI
7/6 Whitewater Rafting PA Youghiogheny River, Ohiopyle State Park Foot entanglement with rope 22 M Lancaster, PA http://rec-law.us/12dNcIz & http://rec-law.us/1btCuRC
7/9 Summer Camp UT Mt. Dell Scout Ranch, UT Run over by flat bed truck 14 M Cedar Hills, UT http://rec-law.us/159p1tz
8/14 Whitewater Rafting WV New River, WV washed out of boat into “meat grinder” area 16 M Germany http://rec-law.us/1dfgQl8
8/24 Whitewater Rafting TN Ocoee River, TN fell out in Grumpy’s rapid 52 F Rex, GA http://rec-law.us/17fRPnc & http://rec-law.us/1dJZYTU
8/25 Whitewater Rafting TN Ocoee River, TN fell out in Grumpy’s rapid 36 F Smyrna, TN http://rec-law.us/17fRPnc & http://rec-law.us/12FJFmh

Our condolences go to the families of the deceased. Our thoughts extend to the families and staff at the areas who have to deal with these tragedies.

Overall it has been a low fatality year! 

What do you think? Leave a comment.

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Copyright 2013 Recreation Law (720) Edit Law

Email: Rec-law@recreation-law.com

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Sanders v. Laurel Highlands River Tours, Incorporated, 1992 U.S. App. LEXIS 15094 (4th Cir 1992)

Sanders v. Laurel Highlands River Tours, Incorporated, 1992 U.S. App. LEXIS 15094 (4th Cir 1992)

James A. Sanders, Plaintiff-Appellant, v. Laurel Highlands River Tours, Incorporated; Laurel Highlands River Tours of Maryland, Incorporated, Defendants-Appellees.

No. 92-1060

United States Court of Appeals for the Fourth Circuit

1992 U.S. App. LEXIS 15094

May 5, 1992, Argued

June 29, 1992, Decided

Notice: Rules of the Fourth Circuit Court of Appeals may limit citation to unpublished opinions. Please refer to the rules of the United States Court of Appeals for this circuit.

Subsequent History: Reported as Table case at 1992 U.S. App. LEXIS 22122

Prior History: Appeal from the United States District Court for the District of Maryland, at Baltimore. Frederic N. Smalkin, District Judge. (CA-91-1507-S)

Disposition: Affirmed

Counsel: Argued: Richard Evan Jordan, Washington, D.C., for Appellant.

Howard J. Schulman, Baltimore, Maryland, for Appellee.

Judges: Before Ervin, Chief Judge, Hamilton, Circuit Judge, and Howard, United States District Judge for the Eastern District of North Carolina, sitting by designation.

Opinion by: Per Curiam

Opinion

Opinion

Per Curiam:

James A. Sanders appeals the order of the district court granting summary judgment in favor of Laurel Highlands River Tours, Inc. (Laurel) on his claims arising from injuries he received while on a white-water rafting trip. Sanders also appeals the district court’s denial of his motion for reconsideration of the judgment. The district court granted summary judgment on the grounds that Laurel had no duty to warn Sanders of the dangers of the white-water rafting trip; that he failed to produce evidence that Laurel breached a duty to rescue him at the earliest opportunity; and that he failed to establish causation as to his claim that Laurel failed to adequately treat his injury.

Although the district court erred in ruling that the theory of failure to warn, other than as applied to landowners, does not arise outside of the product liability context, we affirm its decision on the grounds that, as a matter of law, the warnings given to Sanders were adequate and he assumed the risk of undertaking the white-water rafting trip.

I

Laurel is a corporation engaged in the business of outfitting and guiding customers who wish to raft down rivers and their rapids in the Pennsylvania area. One of the guided white-water tours is on the upper portion of the Youghiogheny River in Western Maryland. This portion of the Youghiogheny is classified, according to an industry guide, as within the most difficult of all categories of river runs, suitable for experts. Armstead, Whitewater Rafting in Eastern North America, (2d ed. 1989).

Sanders contracted with Laurel for himself and three of his friends. This trip was not the first Sanders took. On October 24, 1987, Sanders went on a rafting trip with Laurel on the lower Youghiogheny, a run classified as lower in difficulty than the upper Youghiogheny. Prior to the lower Youghiogheny trip, Sanders signed a release of liability which stated in part that he “realized I could fall out of the raft or even capsize in rough water (rapids). I realize this could result in serious injury.” (Exhibit, Joint Appendix (J.A.) 34). On July 20, 1988, Sanders made the reservation for the upper Youghiogheny trip. Sanders concedes that he received, prior to this trip, a brochure that stated, in relevant part:

1)Although we spare no effort to assure you a safe trip, it must be understood that whitewater rafting does include some danger. We can assume no responsibility for personal safety . . . . We will ask that you sign a liability form. (J.A. 44).

2.Experience is a must everyone in your group should have rafted the Cheat [a river classified as lower in difficulty than the upper Youghiogheny] several times at various water levels. (J.A. 40).

3.Upper Youghiogheny – advanced to expert level. The upper Youghiogheny . . . is the ultimate challenge in white-water rafting.

Sanders denies, and we accept for purposes of reviewing this summary judgment, that he heard the oral warnings that Laurel submits it gave about the dangers of white-water rafting in general and the upper Youghiogheny in particular. Laurel asserts that it gave such warnings at the meeting point for participants and the embarkation point at the river. There is no question, however, that Sanders signed a waiver and release card, before both the first trip and the ill-fated one. The card stated, directly above his signature and directly below information he filled out:

As a condition of acceptance, I certify that I am an able swimmer, in good health, and understand the sport of white-water rafting. I further understand the potential hazards of the sport of white-water touring and realize that I could fall out of the raft or even capsize in a raft in rough water (rapids). I realize this could possibly result in serious injury. I relieve and save harmless Laurel Highland River Tours, Inc., their Directors, Officers, Stockholders, Employees and Helpers, of any responsibility for any and all claims of any nature whatsoever . . . . (J.A. 34).

Laurel transported the customers to the drop-off point. At the drop-off point, the customers were given further instructions and outfitted with helmets and life preservers.

Early in the trip, Sanders fell out of the raft and claims he was forced to traverse approximately 100 yards of the rapids bodily. He asserts that, prior to his injury, there was an opportunity for him to be safely retrieved, but that the raft guide instructed his companions not to attempt to retrieve him until they got to calmer water. Sanders injured his knee at some point when he struck a rock and claims that he also suffered an open wound on the knee at that time. A Laurel employee rendered first aid which consisted of applying an ice cap and an elastic bandage to the injured area.

The next morning, Sanders went to an emergency room where he was treated and told to seek further care closer to home. The emergency room records indicate that he had an abrasion and a fractured knee cap. He later had surgery performed on his knee to repair the fracture. Four days later, Sanders developed a staph infection in the upper thigh.

Sanders does not claim that Laurel owed him a duty to prevent him from falling out of the raft. He does assert that Laurel breached a duty to warn him of the dangers of rafting and that Laurel failed to rescue him at the earliest opportunity. His main claim, as the district court perceived it, was that Laurel failed to render proper first aid and this was the cause of his subsequent infection.

The parties focused much of their pre-trial efforts on the purported release which Sanders signed prior to the trip. The district court, however, found it unnecessary to consider this issue.

First, the district court found that the only basis for the claim that he should have been rescued sooner was Sanders’ opinion. The district court ruled that such an opinion concerning when it was safe to get Sanders back into the raft probably required the testimony of an expert, but even if it did not, Sanders’ statements were mere “adjectival descriptions” which, under Maryland law, would be insufficient to prove negligence. (Order, J.A. 254). Sanders’ second claim for relief was that Laurel’s employee was negligent in failing to properly render first aid to him because his wound was not properly cleaned. Here the district court focused on the medical evidence concerning causation, finding that the medical evidence failed to show that the infection was caused by improper first aid.

Sanders filed a motion for reconsideration and attached a supplemental affidavit from one of his medical experts in which the expert specifically opined that the lack of first aid was the cause of the subsequent staph infection. Sanders also claimed that the district court failed to consider his “failure to warn claim.” This failure to warn claim was based on Laurel’s supposed duty to warn Sanders of the extreme danger of the particular section of river they would be traversing.

The district court in its order on reconsideration noted that a “failure to warn” theory of recovery, outside of the landowner liability context, was limited in application to product liability cases. In addition, the district court refused to give Sanders a”second bite at the apple” by supplementing the medical expert’s affidavit. To do so, the court felt, would substantially diminish the purpose and utility of summary judgment.

Sanders appeals on the grounds that: (1) he properly presented a “failure to warn claim”; (2) Laurel was strictly liable as a common carrier; (3) the district court abused its discretion in refusing to permit him to supplement the medical expert’s affidavit; (4) the district court erred in finding that the original affidavits were insufficient; and (5) the district court erred in finding that he failed to offer proof from which a reasonable jury could find Laurel negligent in failing to rescue him sooner.

Laurel argues on appeal against these assertions. It also contends that it was not liable as a matter of law because Sanders knew of the danger and voluntarily assumed the risk, because Sanders agreed, before his injury, to unconditionally release Laurel from any liability, and because Laurel adequately warned Sanders of the dangers involved.

II

Sanders, a citizen of Alabama, brought this suit in federal court against Laurel, a corporate citizen of Pennsylvania, on the basis of diversity. The parties agreed that the law of the locus, Maryland, applied to the action.

[HN1] Appellate review of the granting of a party’s motion for summary judgment is de novo, and the court of appeals uses the same standard as the district court. Charbonnages de France v. Smith, 597 F.2d 406 (4th Cir. 1979).

Initially, it must be noted that the district court erred in holding that a defendant can have no duty to warn outside of landowner and product liability law. See, e.g., Eisel v. Bd. of Educ. of Montgomery Co., 597 A.2d 447 (Md. 1991) (holding that the failure of a school counselor to inform parents of a student’s suicide ideation was grounds for liability of the school); B.N v. K.K., 538 A.2d 1175 (Md. 1988) (holding that the failure of a person to warn his sexual partner that he had genital herpes was grounds for liability for transmission of the disease). [HN2] A duty to warn does extend beyond product liability or landowner liability cases if a warning is called for as a result of one party’s general duty to another.

For example, the owner of a horse with a known dangerous propensity must warn a rider of that danger since that is the appropriate way for him to respond to his duty to his customer. See, e.g., Bass v. Quinn Robins Co., 216 P.2d 944 (Idaho 1950). An airline has a duty to warn a passenger of turbulence it knows is likely to occur. Brittain v. Piedmont Aviation, Inc., 120 S.E.2d 72 (N.C. 1961). An airline may have a duty to warn of conditions of flight if it knows they may affect a passenger with a particular sensitivity to those conditions. Paolone v. American Airlines, Inc., 706 F. Supp. 11 (S.D. N.Y. 1989).

In Eisel, the court discussed [HN3] the factors under which a tort duty arises; these factors are: foreseeability and certainty of harm; policy of preventing harm; closeness of connection between conduct and harm; moral blame; burden on defendant; and insurability. 597 A.2d at 452-55. A white-water outfitter who arranges and guides customers on rafting trips owes a general duty of care to its customers. The general duty may require, in some circumstances, that Laurel provide a warning to its patrons. We decline to hold, as the district court effectively does, that Laurel has no duty to warn of the danger of the rafting trip it sells to its customers.

In this case, however, the error proved harmless because the warnings given, as a matter of law, were adequate. * The district court based its opinion on the proposition that there was no duty to warn. Because the record is clear and the facts apparent, however, we need not remand for consideration. Cf. Federal Deposit Insur. Corp. v. Jones, 846 F.2d 221 (4th Cir. 1988).* The district court correctly noted that the warnings Laurel gave were adequate as a matter of law and that the general dangers of white-water rafting are apparent. However, it assumed for purposes of summary judgment that this was not the case and based its holding on other grounds.

There can be no real dispute that Laurel gave Sanders adequate warnings of the hazards of white-water rafting in general and the enhanced hazards of rafting the upper Youghiogheny in particular. Warnings need only be reasonable, they need not be the best possible warnings in the circumstances. Nolan v. Dillon, 276 A.2d 36 (Md. 1971). In this case, Laurel provided several warnings of the general risks and at least one specific warning that Sanders could fall out and be injured. A more specific or adequate warning could not be required.

Furthermore, it is uncontestable that Sanders had previously been on a white-water rafting experience and had twice signed release cards that specifically warned of the dangers of falling out, capsizing and injury. Even if Sanders neither heard nor read the many warnings given him, the general danger of white-water rafting is a risk apparent to anyone about to embark on such a trip. See Saenz v. Whitewater Voyages, Inc., 226 Cal. 3d 768, 276 Cal. Rptr. 672 (1st Dist. 1990).

Given the obviousness of the general risks involved, the warnings given of the specific risk from which Sanders was injured, and his previous rafting experience, Sanders assumed the risk of his injury. [HN4] Under Maryland law, participants assume the obvious and apparent risks of engaging in such sports. Nesbitt v. Bethesda Country Club, 314 A.2d 738 (Md. App. 1974). Clearly under Maryland law, if a plaintiff, as here, voluntarily exposes himself to a known danger of which he was warned or otherwise knows of, he has assumed the risk that danger poses. Gibson v. Beaver, 226 A.2d 273 (Md. 1967).

III

With regard to the claims that Laurel failed to rescue Sanders at the earliest opportunity and that it failed to render proper first aid, we have considered the briefs and the arguments of the parties and affirm on the reasoning of the district court. Sanders v. Laurel Highlands River Tours, Inc., No. CA-91-1507-S (D. Md. Nov. 15, 1991). We further find the claim that Laurel was strictly liable as a common carrier to be without merit. Accordingly, the decision of the district court is affirmed.

AFFIRMED

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Historical Use v. Money, Control and Power

Ohiopyle Falls on the Youghiogheny River

Image via Wikipedia

A summer camp in eastern Pennsylvania is suing the state of Pennsylvania over the right to run rafting trips on the Youghiogheny River. This statement does not seem like much at first however it is a very interesting legal argument about a state’s right to control commercial activities on its rivers. See SBTW sues DCNR for right to raft.

In this case the summer camp is Summer’s Best Two Weeks (SBTW), a Christian youth camp that has been running raft trips for its campers for more than 30 years. Several years ago the state licensed four outfitters as the only commercial rafting operators on the Youghiogheny River and ordered SBTW to quit running raft trips.

It is not evident from the information whether SBTW was offered a commercial permit.

The commercial rafting companies were probably excited because they knew they could pick up the $30,000 of rafting that SBTW would provide. Yet it seems no one in the state or the commercial operators understood basic economies: supply and demand. In this case SBTW did not hire one outfitter for one trip. The cost of hiring a commercial raft company to take the campers down the river was more than the summer camp could pay. Simple economics, rafting is fun, but at a price.

I have to admit a little bias in this case. While I was working on the rivers in the west my brother was a raft guide for SBTW.

We do not know the states reasoning for either excluding or not including SBTW. Was it to keep SBTW off the river or where they influenced by commercial companies to increase their income?

This story can be repeated on rivers and trails across the US. You can change out the word camp for college or any other non-profit group and see outfitters believing that by excluding them from being on the same area they can profit from the result. It never works. There is a ceiling on the amount these some groups can pay and in the case of college programs there are different goals. Commercial companies want to provide entertainment for their clients. Colleges may want to educate, teach, build teams or have numerous other goals.

Don’t get me wrong. I’m all for outfitters, they are my bread and butter. But the outdoor industry never looked at the economics of outdoor activities other than their own bottom line. Campers and their parents, college students and their parents, most groups and parents have a fixed amount of money they can be spent on the summer or an education. Once that amount of money is spent, no more activities are undertaken.

There scenario has been played out for years at various recreational hot spots and is going to boil over as the forest service notifies more colleges and universities that they are no longer allowed on USFS land without a permit or a commercial outfitter on a permit.

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