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

Parveen v. Tiki Tubing, LLC, 2011 1477 (La.App. 1 Cir. 03/23/12); 2012 La. App. Unpub. LEXIS 115

Neelam Parveen, Individually and on Behalf of Mansoor Raja and their Minor Children Versus Tiki Tubing, LLC and Abc Insurance Company

NO. 2011 CA 1477

COURT OF APPEAL OF LOUISIANA, FIRST CIRCUIT

2011 1477 (La.App. 1 Cir. 03/23/12); 2012 La. App. Unpub. LEXIS 115

March 23, 2012, Judgment Rendered

NOTICE: NOT DESIGNATED FOR PUBLICATION.

PLEASE CONSULT THE LOUISIANA RULES OF APPELLATE PROCEDURE FOR CITATION OF UNPUBLISHED OPINIONS.

SUBSEQUENT HISTORY: Writ denied by Parveen v. Tiki Tubing, LLC, 90 So. 3d 1063, 2012 La. LEXIS 1798 (La., June 15, 2012)

PRIOR HISTORY: [*1]

On Appeal from the 21st Judicial District Court, in and for the Parish of Livingston, State of Louisiana. District Court No. 128,216. The Honorable Elizabeth P. Wolfe, Judge Presiding.

DISPOSITION: AFFIRMED.

COUNSEL: Nicholas M. Graphia, Monroe, La., Counsel for Plaintiff/Appellant, Neelam Parveen, individually and on behalf of Mansoor Raja and their minor children.

C. David Vasser, Jr., Baton Rouge, La., Counsel for Defendant/Appellee, Tiki Tubing, L.L.C.

JUDGES: BEFORE: CARTER, C.J., PARRO AND HIGGINBOTHAM, JJ.

OPINION BY: CARTER

OPINION

[Pg 2] CARTER, C.J.

The plaintiff appeals the summary judgment dismissing her suit for damages arising from the drowning death of her husband. For the reasons that follow, we affirm.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

Tiki Tubing, L.L.C. (Tiki) is a commercial enterprise located on the banks of the Amite River. During peak summer months, Tiki employs 10-15 full time employees. For a fee, Tiki provides customers with parking, tube rental, a bus ride upstream, and a beach entry and exit on the river. The tubing route on the Amite River takes approximately four hours to complete. The Tiki website describes the Amite River as “smooth and slow moving and … 1 to 3 feet deep with a few deeper holes from [*2] 6 to 8 feet deep.” The website continues: “All bodies of water have some inherent risks. Tiki . . . and its affiliates assume no liability for personal injury or loss of personal property.” The tubers are grouped together at the Tiki hut and bused upstream to the ingress point on the river. At this point, the tubers select their tubes and enter the water.

According to John Fore, the managing member of Tiki, there are no warning signs posted at the hut or along the river. Tiki provides life jackets free of charge to customers; however, customers are not required to wear them. Neither Fore nor the Tiki employees were aware of any prior drowning on the tubing route. There are no lifeguards or rescuers on staff, and employees are not trained in water safety or in cardiopulmonary resuscitation (CPR). Tiki employees do not travel the river with the tubers, and there is no emergency equipment along the river route or at the Tiki [Pg 3] facility. Tiki does hire off-duty Livingston Parish Deputies as independent contractors to assist with crowd control, public drinking, drugs, broken glass, and unlocking of cars. The deputies are not posted on the tubing route; they are not hired to handle medical [*3] emergencies.

On June 21, 2009, 37-year-old Mansoor Raja and two of his friends decided to tube the Amite River. Raja had never tubed before, and after reading about Tiki from its internet website, Raja, Akhlaq Akhtar, and Tariq Mehmood drove to the facility. The group was presented with a liability waiver at the hut, and Akhtar printed all three men’s names on the bottom of the sheet.¹ Although Raja was with Akhtar when Akhtar completed the form, Raja did not read or sign the waiver. Akhtar remembered the men being given a document containing safety instructions and that this information also was posted on a board. According to Akhtar, all three men read the instructions, which specifically mentioned the availability of life jackets. Akhtar asked the other men if they needed life jackets, but the general consensus was that the water would not be deep enough and that the life jackets were not needed. The waiver sheet is the only “warning” at the Tiki facility.

1 The waiver is entitled “Participant’s Agreement, Release, and Assumption of Risk.” The bottom of the form has multiple lines upon which customers write their names.

The three men boarded the bus, rode upstream, retrieved their tubes, [*4] and entered the river. According to Akhtar, Raja and Mehmood were playing around and getting caught in trees in the water. Akhtar tried to rush the other two men along so that they would not get separated from the group. The water was shallow, and Raja and Mehmood were leaving their tubes and [Pg 4] swimming freely in the river. The three men continued in this fashion for 15 to 20 minutes.

On the river trip, Raja was “getting excited.” He would leave his tube, swim downstream with the current, then wait for his tube to float to him. Raja did this four or five times. The men stopped to take a photograph, after which Raja said he would swim just one more length. Suddenly, while swimming ahead of his tube, Raja disappeared under the water. Then, Mehmood began having trouble in the water. Akhtar floated toward his friends and was able to help Mehmood get hold of the tube and out of the water. Raja, however, panicked and was unable to grasp the tube. According to Akhtar, the water was “too far deep” and moving much faster underneath the surface. Akhtar did not leave his tube in an attempt to pull Raja from the water because, according to Akhtar, the water was too deep and the current would [*5] have pulled him under too. Akhtar explained: “If you go to somebody who’s drowning, he’ll take you with him even if you are [a] good swimmer….”

Other floaters, noticing the commotion, began calling for help; the authorities were alerted with a call to 911, and another tuber ran toward the ingress point where several employees were working to notify them that someone was “lost.” Christopher Seese, a teenage employee of Tiki, stated that he first thought someone had simply gotten off his tube and run off. Upon realizing there was a problem, three employees ran to the scene. Fifteen to twenty tubers were sitting on the beach, and several tubers were swimming around in the deeper area of the river. The employees immediately entered the river. It took Christopher five to ten minutes to [Pg 5] locate Raja in the eight-foot-deep pocket in the river by dragging his foot in the water. Raja’s body was resting against a submerged log. According to Christopher, the current in the pocket was no stronger than the rest of the river; however, the water was deeper. It was estimated that it took an additional three to four minutes to get Raja out of the water and onto the shore.

Raja was brought to [*6] the shore, and another tuber was the first to attempt CPR. Because he was on the opposite side of the river, Akhtar estimated that it took him ten minutes to get to Raja after he was pulled from the water. Upon reaching shore, Akhtar observed that the unidentified tuber was performing CPR incorrectly, so Akhtar took over.² Akhtar blew air into Raja’s chest, and Tiki employee Jacob Bourgeois assisted with chest compressions. Ultimately, four different people performed chest compressions on Raja, assisting Akhtar with CPR until the rescue helicopter arrived. According to Akhtar, Raja’s pulse was restored and he was warm to the touch prior to the arrival of paramedics and being airlifted to a hospital. Raja’s death certificate indicates he died the next day, June 22, 2009.

2 Akhtar explained that he had received training in CPR during military service.

Raja’s surviving spouse, Neelam Parveen, filed this wrongful death and survival action for damages against Tiki and its insurer, alleging Tiki’s negligent acts and omissions were a proximate cause of Raja’s death. After answering the petition, Tiki filed a motion for summary judgment, alleging Tiki did not breach any legal duty to Raja. Subsequent [*7] to the filing of Tiki’s motion for summary judgment, but prior to the hearing on the motion, the trial court granted the plaintiff leave to file a supplemental and amending [Pg 6] petition for damages. Therein the plaintiff alleged that she was entitled to punitive damages under general maritime law in that Tiki’s conduct was grossly negligent, reckless, and wanton. Thereafter, the plaintiff filed an opposition to Tiki’s motion for summary judgment, with attachments thereto, as well as a supplemental opposition.

Following a hearing, the trial court granted Tiki’s motion for summary judgment, and the plaintiff’s claims against Tiki were dismissed with prejudice. The plaintiff appeals, asserting several arguments in support of her position that summary judgment was improperly granted.

SUMMARY JUDGMENT

A motion for summary judgment is a procedural device used to avoid a full-scale trial when there is no genuine issue of material fact. All Crane Rental of Georgia, Inc. v. Vincent, 10-0116 (La. App. 1 Cir. 9/10/10), 47 So. 3d 1024, 1027, writ denied, 10-2227 (La. 11/19/10), 49 So. 3d 387. Summary judgment is properly granted if the pleadings, depositions, answers to interrogatories, and admissions [*8] on file, together with affidavits, if any, show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. La. Code Civ. Proc. Ann. art. 966B. Summary judgment is favored and designed to secure the just, speedy, and inexpensive determination of every action. La. Code Civ. Proc. Ann. art. 966A(2).

Appellate courts review evidence de novo under the same criteria that govern the trial court’s determination of whether summary judgment is appropriate. All Crane, 47 So. 3d at 1027. On a motion for summary judgment, the burden of proof is on the mover. La. Code Civ. Proc. Ann. art. 966C(2) [Pg 7]. If, however, the mover will not bear the burden of proof at trial on the matter that is before the court on the motion, the mover’s burden does not require that all essential elements of the adverse party’s claim, action, or defense be negated. Id. Instead, the mover must point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Id. Thereafter, the adverse party must produce factual evidence sufficient to establish that he will be able to satisfy his evidentiary [*9] burden of proof at trial. Id. If the adverse party fails to meet this burden, there is no genuine issue of material fact, and the mover is entitled to summary judgment as a matter of law. La. Code Civ. Proc. Ann. art. 966C(2); All Crane, 47 So. 3d at 1027.

In ruling on a motion for summary judgment, the court’s role is not to evaluate the weight of the evidence or to determine the truth of the matter but, instead, to determine whether there is a genuine issue of triable fact. All Crane, 47 So. 3d at 1027. A court cannot make credibility decisions on a motion for summary judgment. Id. In deciding a motion for summary judgment, the court must assume that all of the witnesses are credible. Id. Factual inferences reasonably drawn from the evidence must be construed in favor of the party opposing the motion, and all doubt must be resolved in the opponent’s favor. Id. Whether a particular fact in dispute is “material” for summary judgment purposes is viewed in light of the substantive law applicable to the case. Richard v. Hall, 03-1488 (La. 4/23/04), 874 So. 2d 131, 137.

[Pg 8] DISCUSSION

The plaintiff advances several theories of recovery for the alleged negligence or gross negligence of Tiki. [*10] Broadly stated, the plaintiff maintains that Tiki had custody of the tubing route on the Amite River and, accordingly, that Tiki owed its patrons a duty to maintain the river so that its guests would not be injured by the river’s vices and defects, a duty to train Tiki employees in emergency rescue and life-saving procedures, and a duty to properly warn Tiki customers of the hazards associated with tubing on the Amite River. The plaintiff also alleges that once Tiki employees involved themselves in attempted life-saving procedures on Raja, those employees assumed a duty to perform those life-saving measures properly.

The elements of a cause of action in tort are fault, causation, and damage. Seals v. Morris, 410 So. 2d 715, 718 (La. 1981). The existence of a legal duty and a breach of that duty are prerequisites to any determination of fault. Id. Although the determination of whether to assign a legal duty is fact-specific, the issue of whether there is a duty ultimately is a question of law. Bowman v. City of Baton Rouge/Parish of East Baton Rouge, 02-1376 (La. App. 1 Cir. 5/9/03), 849 So. 2d 622, 627, writ denied, 03-1579 (La. 10/3/03), 855 So. 2d 315. The inquiry is whether the plaintiff [*11] has any law–statutory, jurisprudential, or arising from general principles of fault– to support her claim. Faucheaux v. Terrebonne Consol. Government, 615 So. 2d 289, 292 (La. 1993); Fredericks v. Daiquiris & Creams of Mandeville, L.L.C, 04-0567 (La. App. 1 Cir. 3/24/05), 906 So. 2d 636, 639, writ denied, 05-1047 (La. 6/17/05), 904 So. 2d 706.

[Pg 9] Under Louisiana Civil Code article 2317, “[w]e are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of the things which we have in our custody.” Louisiana Civil Code article 2317.1 modifies Article 2317 and provides in pertinent part:

[The] custodian of a thing is answerable for damage occasioned by its ruin, vice, or defect, only upon a showing that he knew or, in the exercise of reasonable care, should have known of the ruin, vice, or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care.

The plaintiff alleges that in accordance with Article 2317.1, Tiki, as custodian³ of the tubing route on the Amite River, owed a duty to its patrons [*12] to employ safety measures to prevent drowning and to discover any unreasonably dangerous condition and to either correct the condition or warn of its existence. In order to prevail on a claim of negligence under Articles 2317 and 2317.1, the plaintiff will have the ultimate burden at trial of proving by a preponderance of the evidence each of the following elements: (1) Tiki is the custodian of the portion of the Amite River that includes the tubing route; (2) that portion of the Amite River is defective and that the defect presented an unreasonable risk of harm; (3) Tiki knew or should have known of the defect; (4) the plaintiff was damaged by the defect; and (5) Tiki could have prevented the damage to the plaintiff by the exercise of reasonable care, which Tiki failed to exercise. See Riggs v. Opelousas General Hosp. Trust Authority, 08-591 (La. App. 3 Cir. 11/5/08), 997 So. 2d 814, 817. Failure to prove any one of these elements will defeat the [Pg 10] plaintiff’s claim and thus establish the defendant’s entitlement to summary judgment. See Grogan v. Women’s and Children’s Hospital, Inc., 07-1297 (La. App. 3 Cir. 4/16/08), 981 So. 2d 162, 165.

3 There are no allegations or evidence [*13] suggesting that Tiki owned the area of the river, or the land abutting that portion of the river, in which Raja drowned.

The Louisiana Supreme Court has instructed that determining who has custody of a thing is a fact-driven determination. Dupree v. City of New Orleans, 99-3651 (La. 8/31/00), 765 So. 2d 1002, 1009. Courts should consider: (1) whether the person bears such a relationship as to have the right of direction and control over the thing; and (2) what, if any, kind of benefit the person derives from the thing. Dupree, 765 So. 2d at 1009. “The person who has custody or garde of a thing is he who has the legal duty to prevent its vice or defect from harming another.” Id. at 1009. This court has held that a state-owned river cannot be in the custody of a landowner. See Tobey v. State, 454 So. 2d 144, 145 (La. App. 1st Cir. 1984) (a tubing accident did not result from any condition of the land).

Even if the plaintiff were to establish that material issues of fact remain in dispute regarding custody of the tubing route on the Amite River, the plaintiff also must prove that the portion of the Amite River at issue suffered from a vice or defect in order to recover damages under Articles 2317 [*14] and 2317.1. A defect is defined as a condition that creates an unreasonable risk of harm. Moory v. Allstate Ins. Co., 04-0319 (La. App. 1 Cir. 2/11/05), 906 So. 2d 474, 480, writ denied, 05-0668 (La. 4/29/05), 901 So. 2d 1076. The record establishes that Raja drowned in an area of the river described as a drop or a deep pocket. This court has held that the “existence of a hole in a natural lake, that renders the depth of the lake deeper than other portions, would not, ipso facto, constitute a defective [Pg 11] condition.”⁴ Johnson v. City of Morgan City, 99-2968 (La. App. 1 Cir. 12/22/00), 787 So. 2d 326, 330-31, writ denied, 01-0134 (La. 3/16/01), 787 So. 2d 315. Further, “variations in water depth within natural swimming areas are standard.” Johnson, 787 So. 2d at 330. Citing this court in Johnson, the Fourth Circuit has concluded that there is no distinction between a hole in a lake and a drop off in a river. Sevin v. Parish of Plaquemines, 04-1439 (La. App. 4 Cir. 4/27/05), 901 So. 2d 619, 623-24, writ denied, 05-1790 (La. 1/27/06), 922 So. 2d 550. The plaintiff fails to establish that the deeper pocket in this natural body of water constitutes a defect for purposes of Article 2317.1.

4 Moreover, [*15] not every defect gives rise to statutory liability under Articles 2317 and 2317.1. Ruschel v. St. Amant, 11-78 (La. App. 5 Cir. 5/24/11), 66 So. 3d 1149, 1153. The defect must be of such a nature as to constitute a dangerous condition that reasonably would be expected to cause injury to a prudent person using ordinary care under the circumstances. Ruschel, 66 So. 3d at 1153.

The plaintiff argues that Tiki had a duty to provide an adequate and correct warning to customers regarding the dangers of tubing and the depth and current of the Amite River, and also had a duty to post lifeguards along the tubing route.⁵ Tubing has been defined as an activity that is obviously and inherently dangerous. See Tobey, 454 So. 2d at 146. Drowning because of currents is a natural and inevitable risk to swimmers in a natural body of water. See Hall v. Lemieux, 378 So. 2d 130, 132 (La. App. 4th Cir. 1979), [Pg 12] writ denied, 381 So. 2d 1220 (La. 1980). When a risk is obvious, there is no duty to warn or protect against it. Moory, 906 So. 2d at 478. Akhtar described Raja as “not a good swimmer.”⁶ Despite his limited swimming abilities and knowing that the water was over his head in parts, Raja voluntarily [*16] left his tube to swim freely in the river without a life jacket, allowing the current to carry him away from his tube.

5 Louisiana’s general negligence liability provision is found in Louisiana Civil Code article 2315. Louisiana courts have adopted a duty-risk analysis in determining whether to impose liability under Article 2315. Pinsonneault v. Merchants & Farmers Bank & Trust Co., 01-2217 (La. 4/3/02), 816 So. 2d 270, 275. In order for liability to attach under a duty-risk analysis, the plaintiff must prove five separate elements: (1) the defendant had a duty to conform his or her conduct to a specific standard of care (the duty element); (2) the defendant failed to conform his or her conduct to the appropriate standard of care (the breach of duty element); (3) the defendant’s substandard conduct was a cause-in-fact of the plaintiff’s injuries (the cause-in-fact element); (4) the defendant’s substandard conduct was a legal cause of the plaintiff’s injuries (the scope of protection element); and (5) actual damages (the damage element). Pinsonneault, 816 So. 2d at 275-76.

6 During the few times that Akhtar and Raja swam together in a pool, Raja would swim one pool length at a time, keeping [*17] his head out of the water the entire time. Raja would go in water over his head; however, he would hold onto a “pipe.”

Finally, citing to Harris v. Pizza Hut of La., Inc., 455 So. 2d 1364 (La. 1984), the plaintiff argues that Tiki assumed a duty when its employees attempted life-saving measures on Raja and then breached that duty by improperly performing CPR on Raja. In Harris, the supreme court held that a restaurant had a duty, once it hired a security guard, to have that guard protect patrons from the criminal activities of third persons in a reasonable and prudent manner. Id. at 1369. This court has recognized that the negligent breach of an assumed duty may create civil liability. McGowan v. Victory and Power Ministries, 99-0235 (La. App. 1 Cir. 3/31/00), 757 So. 2d 912, 914. If a person voluntarily or gratuitously undertakes a task that he otherwise has no duty to perform, he must nevertheless perform that task in a reasonable or prudent manner. McGowan, 757 So. 2d at 914; see La. Civ. Code Ann. art. 2315.

Tiki employees acknowledged having no formal CPR training. Akhtar stated that he had been trained in CPR, and Akhtar was performing breathing assistance on Raja, while several [*18] others–including Tiki employees–assisted with chest compressions on Raja. The affidavit of the [Pg 13] plaintiff’s expert, Dr. Adam Broussard, set forth the CPR guidelines and concluded that, based on Jacob’s deposition, “the responders did not correctly perform CPR.” Dr. Broussard’s affidavit establishes that early CPR “performed correctly is the single most important intervention that can be performed in the field by a lay person.”

Raja was pulled from the water after being submerged for at least ten minutes. Akhtar stated that when Raja was brought up to the surface, he was not moving and not conscious. Akhtar began breathing into Raja with the assistance of four others, who took turns doing chest compressions. Akhtar observed that after the second person’s turn with chest compressions, Raja was warm to the touch and a pulse was discernible. Although Dr. Broussard’s affidavit establishes that CPR was performed improperly, his affidavit does not establish that the efforts of Tiki employees were unreasonable, imprudent, or, more importantly, a cause-in-fact of Raja’s death or that there was a reasonable probability that proper CPR would have been lifesaving in these circumstances.

CONCLUSION

The [*19] plaintiff failed to produce factual evidence sufficient to establish that she would be able to meet her burden at trial of proving by a preponderance of the evidence all of the elements of a cause of action in negligence or gross negligence. Despite not being a good swimmer, Raja willingly entered the river without a life jacket and chose to swim away from his tube. It was Raja’s own imprudent actions that led to his tragic death. See Sevin, 901 So. 2d at 624. For the above-stated reasons, we affirm the trial court’s grant of summary judgment in favor of the defendant, Tiki [Pg 14] Tubing, L.L.C, dismissing the suit filed against it by Neelam Parveen, individually and on behalf of Mansoor Raja and their minor children. Costs of this appeal are assessed to the plaintiff, Neelam Parveen.

AFFIRMED.

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Burd v. KL Shangri-La Owners, 2003 OK CIV APP 31; 67 P.3d 927; 2002 Okla. Civ. App. LEXIS 143; 74 O.B.A.J. 1109

Georgia N. Burd, Plaintiff/Appellant, vs. KL Shangri-La Owners, L.P., Highgate Hotels, Inc., and Highgate Holdings, Inc., all d/b/a Shangri-La Resort and John Doe 1-3, Defendants/Appellees.

Case No. 98,235

COURT OF CIVIL APPEALS OF OKLAHOMA, DIVISION TWO

2003 OK CIV APP 31; 67 P.3d 927; 2002 Okla. Civ. App. LEXIS 143; 74 O.B.A.J. 1109

December 23, 2002, Decided

SUBSEQUENT HISTORY: [***1] Released for Publication December 23, 2002. As Modified March 25, 2003.

PRIOR HISTORY: APPEAL FROM THE DISTRICT COURT OF DELAWARE COUNTY, OKLAHOMA. HONORABLE ROBERT G. HANEY, TRIAL JUDGE.

DISPOSITION: Trial court’s grant of summary judgment reversed, and case remanded for further proceedings.

COUNSEL: Andrew B. Morsman, ANDREW B. MORSMAN, P.C., Tulsa, Oklahoma, For Plaintiff/Appellant.

Tracy Pierce Nester, LAW OFFICES OF LARRIET E. THOMAS, Oklahoma City, Oklahoma, For Defendants/Appellees.

JUDGES: OPINION BY JERRY L. GOODMAN, JUDGE. COLBERT, P.J., and RAPP, J., concur.

OPINION BY: JERRY L. GOODMAN

OPINION

[**928] OPINION BY JERRY L. GOODMAN, JUDGE:

[*1] This is Georgia N. Burd’s (Patron) appeal from the trial court’s August 19, 2002, order granting summary judgment to all defendants on Patron’s petition for damages from personal injuries suffered while on defendants’ premises. The appeal was assigned to the accelerated docket pursuant to Okla.Sup.Ct.R. 1.36, 12 O.S. 2001, ch. 15, app. 1. Based upon our review of the facts and applicable law, we reverse and remand for further proceedings.

FACTS

[*2] According to Patron’s petition, filed March 16, 2001, she was injured while on the premises owned by the above named corporate defendants (collectively, Shangri-La) on May 12, 1999. Patron was participating in [***2] a tennis tournament held at Shangri-La when she tripped over rolls of carpet stored next to the tennis court. The carpet rolls were hidden from plain view by hanging curtains. Shangri-La generally denied the allegations and raised the affirmative defenses of contributory negligence, assumption of the risk, failure to state a claim, and inadequate notice of a dangerous condition.

[*3] On May 9, 2002, Shangri-La filed a motion for summary judgment. The motion set out as evidentiary material a document executed by Patron and other members of her tennis league prior to the start of the tennis season. The document stated, in relevant part: ¹

Waiver of Claims: . . . .

I agree; for myself, my executors, administrators, heirs and personal representatives; that all claims of any kind, nature [**929] and description are waived, including past, present and future claims, if any, for injuries sustained in traveling to or from, or participating in, local league play in a USTA/MVTA tennis league. I further agree to release any facility (including, but not limited to, private clubs or public parks), its officers or employees; and any personnel associated with the league itself (including officials, [***3] the district association, committees and employees; the USTA, its officers, committees and employees; and any sponsors of the local league). (Emphasis added.)

1 We note this document also serves as a roster sign up sheet and a promise to play by league rules and demonstrate good sportsmanship.

[*4] Shangri-La sought summary judgment on the basis of this exculpatory clause and also argued that it owed no duty to search for hidden traps or dangers on its premises to protect Patron, whom it characterized as a licensee upon the premises. Shangri-La introduced evidentiary material showing Patron was not registered as a guest at Shangri-La, and Shangri-La did not receive any remuneration for the use of its tennis facilities by Patron’s tennis league.

[*5] The trial court conducted a hearing July 3, 2002, and found as a matter of law:

that the document entitled “Missouri Valley Tennis Association Local League Player Waiver,” signed by Plaintiff, contains an exculpatory clause which is effective to relieve Defendants [***4] of and from any liability to Plaintiff for the injuries and damages alleged in this action.

The trial court then granted Shangri-La’s motion for summary judgment. Patron appeals. We reverse and remand for further proceedings.

ANALYSIS

[*6] As set out in Schmidt v. United States, 1996 OK 29, PP 8, 10, 912 P.2d 871, 874,

While these exculpatory promise-based obligations are generally enforceable, they are distasteful to the law. [HN1] For a validity test the exculpatory clause must pass a gauntlet of judicially-crafted hurdles: (1) their language must evidence a clear and unambiguous intent to exonerate the would-be defendant from liability for the sought-to-be-recovered damages; (2) at the time the contract (containing the clause) was executed there must have been no vast difference in bargaining power between the parties; and (3) enforcement of these clauses must never (a) be injurious to public health, public morals or confidence in administration of the law or (b) so undermine the security of individual rights vis-a-vis personal safety or private property as to violate public policy. (Italics in original) (emphasis added).

Further, [***5] [HN2]

A contractual provision which one party claims excuses it from liability for in futuro tortious acts or omissions must clearly and cogently (1) demonstrate an intent to relieve that person from fault and (2) describe the nature and extent of damages from which that party seeks to be relieved.

[*7] In the case in controversy, Patron testified that when she executed the waiver at the beginning of the tennis season, she had no idea she would be playing league tennis at Shangri-La. Also, to her knowledge, this was the first time her Tulsa-area team had played there, though Patron had personally played there before. Indeed, Patron stated she “absolutely [did] not” intend to release Shangri-La when she executed the waiver, because at the time of the execution, the league teams had not even been formed, much less had a schedule or location of games been published. Further, Patron had no idea that Shangri-La would maintain what is arguably a hidden danger on its premises and therefore could not “describe the nature and extent of damages from which” Shangri-La now seeks to be relieved. We hold, as a matter of law, that the general, non-specific release of “any facility” was insufficient [***6] under Schmidt to relieve Shangri-La from liability.

[*8] We are not persuaded by Shangri-La’s attempts to distinguish Schmidt. Indeed we find Schmidt‘s three-prong analysis to test the validity of an exculpatory contract to be directly on point. While it is true Schmidt did not directly rule on an example of an exculpatory contract, it did answer certified federal questions of law as to how this court should analyze such a contract. Using the Schmidt criteria, we find [**930] Patron could not contract away Shangri-La’s liability, because (1) Patron did not know she would be playing at Shangri-La; (2) the identity of the tortfeasor was not known to her at the time of the contract; (3) there was no intent, and thus no meeting of the minds, to exculpate Shangri-La, and (4) the language of the exculpatory contract is vague and ambiguous.

[*9] Nor are we persuaded by Shangri-La’s reliance on Manning v. Brannon, 1998 OK CIV APP 17, 956 P.2d 156, decided one year after, and relying on, Schmidt. In the first instance, Shangri-La’s motion inaccurately sets out Manning‘s holding. Shangri-La declares Manning to stand for the proposition that Patron’s [***7] intent to execute a “waiver” is sufficient to relieve Shangri-La of liability. However, Manning holds as follows:

P7 The Oklahoma Supreme Court has long recognized that [HN3] exculpatory contracts, i.e., a contract to avoid liability for damages also known as a “waiver” or “release,” may be valid and enforceable. . . . That is to say, so long as (1) the intent to excuse one party from the consequences of his or her own negligence is expressed in clear, definite and unambiguous language . . . . (Emphasis added.)

[*10] Second, in Manning, a divided ² Court of Civil Appeals Division I held an exculpatory contract signed or initialed by the plaintiff in 14 different places, after watching a video tape wherein an attorney explained in detail the consequences of the document that the plaintiff was about to sign which expressly named the defendant parachute instruction school, and which contained a release of liability, a covenant not to sue, an agreement to indemnify and hold harmless, and a paragraph describing in detail the risks being assumed by the plaintiff, was sufficient evidence of the plaintiff’s intent to absolve the school of liability.

2 The dissent in Manning noted that the record suggested the defendant parachute school may have recklessly packed plaintiff’s parachute, thus creating a jury question. A waiver should not, in the opinion of the dissenter, absolve a defendant from his reckless behavior.

[*11] [***8] In the case at bar, the general, nonspecific waiver signed by Patron is completely dissimilar to the detailed, explicit release in Manning. In the instant case, the identity of the possible tortfeasor is unclear, over broad, unnamed, and unknown. Further, the waiver fails to identify the risks being waived, the duration of the waiver, and is arguably ambiguous, given the fact that Patron’s signature could be construed as an acknowledgment of the rules of the tennis league, of the waiver of liability, or merely of an indication that she wished to be part of a particular tennis team. We therefore conclude the facts in the case on review are distinguishable from those of Manning, and decline Shangri-La’s invitation to affirm the trial court based upon Manning.

SUMMARY

[*12] Because the trial court’s order clearly states the sole reason for its grant of summary judgment is the existence of the exculpatory clause which the trial court found as matter of law prevented Patron’s recovery, and because we have held such clause to be ineffective as to Shangri-La, we hold the trial court’s order must be reversed and the matter remanded to the trial court for further proceedings. [***9] The order makes no mention of undisputed material facts, or other reasons that, as a matter of law, would support the grant of summary judgment. Nor do we address the issue of Patron’s status as a licensee or invitee, and the respective duties owed to her by Shangri-La, because this was not part of the trial court’s stated basis for granting summary judgment.

[*13] REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.

COLBERT, P.J., and RAPP, J., concur.

December 24, 2002

Perry v. Whitley County 4-H Clubs Inc., 931 N.E.2d 933; 2010 Ind. App. LEXIS 1501

Teresa Perry, Appellant-Plaintiff, vs. Whitley County 4-H Clubs Inc., Appellee-Defendant.

No. 92A03-1002-CT-101

Court Of Appeals Of Indiana

931 N.E.2d 933; 2010 Ind. App. LEXIS 1501

August 16, 2010, Decided

August 16, 2010, Filed

PRIOR HISTORY: [**1]

APPEAL FROM THE WHITLEY CIRCUIT COURT. The Honorable James R. Heuer, Judge. Cause No. 92C01-0809-CT-652.

COUNSEL: ATTORNEY FOR APPELLANT: SARAH E. RESER, Glaser & Ebbs, Fort Wayne, Indiana.

ATTORNEY FOR APPELLEE: CARRIE KOONTZ GAINES, Kopka, Pinkus Dolin & Eads, L.L.C., Mishawaka, Indiana.

JUDGES: ROBB, Judge. FRIEDLANDER, J., and KIRSCH, J., concur.

OPINION BY: ROBB

OPINION

[*934] OPINION – FOR PUBLICATION

ROBB, Judge

Case Summary and Issue

Teresa Perry appeals the trial court’s entry of summary judgment in favor of Whitley County 4-H Clubs, Inc. (the “4-H Club”) on Perry’s negligence complaint for personal injuries suffered during a horse competition sponsored by the 4-H Club. For our review, Perry raises two issues, which we consolidate and restate as whether the trial court properly granted summary judgment based on the Indiana Equine Activity Statute. Concluding there is no genuine issue of material fact and the Equine Activity Statute bars Perry’s claim for injuries resulting from inherent risks of equine activities, we affirm.

Facts and Procedural History

The undisputed facts and those most favorable to Perry as the non-movant are as follows. At all relevant times, Perry, an adult, was a member of the 4-H Clubs Equine Advisory [**2] Board, which provides guidance and instruction to children participating in the 4-H Club’s horse events, and was herself a regular participant in those [*935] events. Perry was also the owner of seven horses. In July 2007, the 4-H Club held horse practices and competitions at the Whitley County Fairgrounds as part of the Whitley County Fair. These events were generally held in the 4-H Club’s Horse Barn, but one event, the Large Animal Round Robin Competition, was held in the 4-H Club’s Show Barn, located next to the Horse Barn. The Horse Barn is over 100 feet wide but the Show Barn is approximately thirty-six feet wide along its shorter side. Horses were generally familiar with the Horse Barn but unfamiliar with the Show Barn, where they were “not allowed any other time” besides the Round Robin Competition. Appellant’s Appendix at 88. At all entrances to the Horse Barn, the 4-H Club had posted “Equine Activity warning signs” that were “clearly visible.” Id. at 18-19 (affidavit of Bill Leeuw, 4-H Club’s President of the Board).

On July 25, 2007, the Round Robin Competition was held. The Equine Advisory Board and volunteers selected the horses to be shown, and Perry herself selected one of those [**3] horses “at the last minute.” Id. at 93. Perry was present at the Round Robin Competition as an Equine Advisory Board member responsible for the safety of children handling the horses. As part of the event, seven horses were led from the Horse Barn into the Show Barn and lined up approximately two and one-half feet apart along the shorter side of the Show Barn. The horses were then turned over to children who did not normally handle horses but had experience handling animals such as pigs and cows and had received brief instruction on how to handle a horse. After one of the children finished leading a horse through a series of maneuvers, the child left the horse facing away from the center of the Show Barn, in the opposite direction from the neighboring horses and with its rear next to the head of a neighboring horse. The horse facing backwards began sniffing the rear of the neighboring horse, which pinned its ears against its head as a sign it was agitated. Perry realized this situation posed a danger to the child handling the horse facing backwards. Perry therefore approached the child and told the child to turn the horse around. As the child was doing so, the neighboring horse kicked [**4] Perry in the knee. Perry was thrown back and suffered personal injuries.

In September 2008, Perry filed a complaint against the 4-H Club alleging her injuries were caused by the 4-H Club’s negligence in “allowing horse activities to be conducted on premises unsuitable for such activities.” Id. at 6. As specifically argued by Perry at the summary judgment hearing, she alleged the 4-H Club was negligent in deciding to hold the Round Robin Competition in the Show Barn instead of the Horse Barn, as the smaller Show Barn “requires horses to be placed close together, increasing the chances that a child near the horse will be injured by one. It’s also an environment the horses aren’t familiar with, which makes it more likely that a horse will get spooked and kick someone.” Transcript at 4. Among the 4-H Club’s affirmative defenses, it alleged in its answer that Perry’s claim was barred by the Indiana Equine Activity Statute.

The 4-H Club filed a motion for summary judgment based in part on the Equine Activity Statute. Following a hearing, the trial court on January 27, 2010, issued its order granting summary judgment to the 4-H Club. The trial court found and concluded in relevant part:

14. [**5] The [4-H Club] was a sponsor of an equine activity when the accident occurred.

15. [Perry] was a participant in the equine activity in her capacity as a safe [*936] keeper when she approached the horses and was kicked.

16. The Equine Activities Act . . . is applicable to this case.

17. Being kicked by a horse is an inherent risk of equine activity.

18. There is no evidence in the designation of material facts that [the 4-H Club] committed an act or omission which constituted a reckless disregard for the safety of [Perry] or that any other conditions set in [Indiana Code section] 34-31-5-2 existed at the time of the accident.

Appellant’s App. at 5. Perry now appeals.

Discussion and Decision

I. Standard of Review

[HN1] We review a summary judgment order de novo. Tri-Etch, Inc. v. Cincinnati Ins. Co., 909 N.E.2d 997, 1001 (Ind. 2009). In so doing, we stand in the same position as the trial court and must determine whether the designated evidence shows there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Ind. Trial Rule 56(C); Dreaded, Inc. v. St. Paul Guardian Ins. Co., 904 N.E.2d 1267, 1269-70 (Ind. 2009). In making this determination, we construe [**6] the evidence in a light most favorable to the non-moving party and resolve all doubts as to the existence of a genuine factual issue against the moving party. N. Ind. Pub. Serv. Co. v. Bloom, 847 N.E.2d 175, 180 (Ind. 2006). Our review of a summary judgment motion is limited to those materials designated by the parties to the trial court. Mangold ex rel. Mangold v. Ind. Dep’t of Natural Res., 756 N.E.2d 970, 973 (Ind. 2001). The movant has the initial burden of proving the absence of a genuine factual dispute as to an outcome-determinative issue and only then must the non-movant come forward with evidence demonstrating genuine factual issues that should be resolved at trial. Jarboe v. Landmark Cmty. Newspapers of Ind., Inc., 644 N.E.2d 118, 123 (Ind. 1994).

Because this case turns on the proper application of the Equine Activity Statute, we also recite our well-established standard of review for interpretation of statutes:

[HN2] When courts set out to construe a statute, the goal is to determine and give effect to the intent of the legislature. The first place courts look for evidence is the language of the statute itself, and courts strive to give the words their plain and ordinary meaning. [**7] We examine the statute as a whole and try to avoid excessive reliance on a strict literal meaning or the selective reading of individual words. We presume the legislature intended the language used in the statute to be applied logically, consistent with the statute’s underlying policy and goals, and not in a manner that would bring about an unjust or absurd result.

Cooper Indus., LLC v. City of South Bend, 899 N.E.2d 1274, 1283 (Ind. 2009) (citations omitted).

II. Equine Activity Statute

A. Warning Signs

Perry argues the trial court erred in granting summary judgment because there is a genuine issue of fact as to whether the 4-H Club complied with the warning sign requirements of the Equine Activity Statute. We address this sub-issue first because it bears on the threshold applicability of the Equine Activity Statute as a bar to Perry’s claim. See Ind. Code § 34-31-5-3(a) (providing [HN3] “[t]his chapter does not apply unless” equine activity sponsor has posted at least one complaint warning sign). In response to Perry’s argument, the 4-H Club initially [*937] contends Perry waived the argument by not raising it to the trial court prior to the summary judgment hearing. We disagree. In general, arguments [**8] by an appellant are waived if not presented to the trial court on summary judgment, see Cook v. Ford Motor Co., 913 N.E.2d 311, 322 n.5 (Ind. Ct. App. 2009), trans. denied, and summary judgment may not be reversed on the grounds of a genuine factual issue “unless the material fact and the evidence relevant thereto shall have been specifically designated to the trial court,” T.R. 56(H). However, Perry did argue at the summary judgment hearing that the evidence designated by the 4-H Club was insufficient to establish its compliance with the warning sign requirements of the Equine Activity Statute. Moreover, this issue was already before the trial court based upon the 4-H Club’s motion for summary judgment and designation of material facts.

Proceeding to Perry’s claim, [HN4] the Equine Activity Statute provides that an equine activity sponsor, as a condition precedent to immunity under the statute, must post and maintain a warning sign in at least one location “on the grounds or in the building that is the site of an equine activity.” Ind. Code § 34-31-5-3(a)I. The sign “must be placed in a clearly visible location in proximity to the equine activity,” and the warning must be printed in black [**9] letters at least one inch in height. Ind. Code § 34-31-5-3(b), (c). The warning must state: “Under Indiana law, an equine professional is not liable for an injury to, or the death of, a participant in equine activities resulting from the inherent risks of equine activities.” Ind. Code § 34-31-5-5.

The undisputed evidence is that the 4-H Club, on the day of the incident, maintained “Equine Activity warning signs” on all entrances to the Horse Barn, and the signs were “clearly visible.” Appellant’s App. at 18-19. The 4-H Club’s equine activities were regularly held inside the Horse Barn, except for the Round Robin Competition held in the Show Barn located next to the Horse Barn. Perry acknowledged in her deposition she had seen “those signs” on the Horse Barn, id. at 114, and did not designate any evidence the signs were absent on the day of the incident or lacked the specific warning required by Indiana Code section 34-31-5-5. Perry argues, in effect, that because the only photographs the 4-H Club properly designated to the trial court do not directly show the signs contained the specific warning required, ¹ the 4-H Club did not meet its burden of making a prima facie case of compliance [**10] with the statute. We decline Perry’s invitation to, in effect, interpret the Equine Activity Statute to require an equine activity sponsor to submit such photographic or documentary evidence in order to support its claim of immunity. Rather, we conclude the affidavit the 4-H Club properly designated established its prima facie case that it maintained proper warning signs, such that the burden shifted to Perry to come forward with evidence the signs were deficient. Because she did not do so, there is no genuine issue of fact as to the warning signs, and the trial court [*938] properly concluded the Equine Activity Statute applies to this case.

1 The parties dispute, and it is unclear from the record, whether a photograph identified as Defendant’s Exhibit A at Perry’s deposition, and allegedly included along with the deposition in the 4-H Club’s designation of evidence, was actually part of the designated material submitted to the trial court. That photograph, unlike those included as the 4-H Club’s Exhibit C in support of summary judgment and to which the 4-H Club referred at the summary judgment hearing, shows a warning sign containing the text specified in Indiana Code section 34-31-5-5.

B. [**11] Inherent Risk of Equine Activities

Perry also argues the trial court erred in granting summary judgment because there is a genuine issue of fact as to whether her injuries resulted from an inherent risk of equine activities. The Equine Activity Statute provides:

[HN5] Subject to section 2 of this chapter, an equine activity sponsor or equine professional is not liable for:

(1) an injury to a participant; or

(2) the death of a participant;

resulting from an inherent risk of equine activities.

Ind. Code § 34-31-5-1(a). ² [HN6] The definition of “inherent risks of equine activities” is:

the dangers or conditions that are an integral part of equine activities, including the following:

(1) The propensity of an equine to behave in ways that may result in injury, harm, or death to persons on or around the equine.

(2) The unpredictability of an equine’s reaction to such things as sound, sudden movement, unfamiliar objects, people, or other animals.

(3) Hazards such as surface and subsurface conditions.

(4) Collisions with other equines or objects.

(5) The potential of a participant to act in a negligent manner that may contribute to injury to the participant or others, such as failing to maintain control over the [**12] animal or not acting within the participant’s ability.

Ind. Code § 34-6-2-69. The Equine Activity Statute further provides:

[HN7] Section 1 of this chapter does not prevent or limit the liability of an equine activity sponsor . . .:

(1) who:

(A) provided equipment or tack that was faulty and that caused the injury; and

(B) knew or should have known that the equipment or tack was faulty;

(2) who provided the equine and failed to make reasonable and prudent efforts based on the participant’s representations of the participant’s ability to:

(A) determine the ability of the participant to engage safely in the equine activity; and

(B) determine the ability of the participant to safely manage the particular equine;

(3) who:

(A) was in lawful possession and control of the land or facilities on which the participant sustained injuries; and

(B) knew or should have known of the dangerous latent condition that caused the injuries;

if warning signs concerning the latent dangerous condition were not conspicuously posted on the land or in the facilities;

(4) who committed an act or omission that:

(A) constitutes reckless disregard for the safety of the participant; and

(B) caused the injury; or

[*939] (5) who intentionally [**13] injured the participant.

Ind. Code § 34-31-5-2(b). As Indiana’s Equine Activity Statute has not previously been interpreted in any reported case, ³ we will cite for their persuasive value the decisions of other jurisdictions that have interpreted similar statutes.

2 “Equine activity,” pursuant to its statutory definition, includes among other things “[e]quine shows, fairs, competitions, performances, or parades that involve equines.” Ind. Code § 34-6-2-41(a). “Equine activity sponsor” means “a person who sponsors, organizes, or provides facilities for an equine activity.” Ind. Code § 34-6-2-42. Perry does not dispute that the 4-H Club qualifies as an equine activity sponsor.

3 In Anderson v. Four Seasons Equestrian Center, Inc., 852 N.E.2d 576 (Ind. Ct. App. 2006), trans. denied, the only reported case citing the Equine Activity Statute, this court affirmed summary judgment for the defendant on the alternative grounds of waiver and release of liability. Id. at 585. We concluded the waiver applied because the plaintiff’s fall from a horse that moved while the plaintiff was attempting to mount it resulted from a risk “inherent in the nature of the activity of horse riding.” Id. at 584. However, [**14] we did not explicitly base that conclusion upon the text of the Equine Activity Statute.

Perry’s argument is that a reasonable trier of fact could find the cause of her injury was not an inherent risk of equine activities, but negligence of the 4-H Club in staging the Round Robin Competition. Perry makes no argument that any of the exceptions to immunity spelled out in Indiana Code section 34-31-5-2(b) (“Section 2(b)”) — faulty equipment or tack, provision of the equine and failure to make reasonable and prudent efforts to match the participant to the particular equine and equine activity, a latent premises defect, reckless disregard, or intentional injury — apply in this case. Therefore, we must examine whether and to what extent, consistent with the Equine Activity Statute, an equine activity sponsor may be liable for simple negligence allegedly causing injury to a participant.

Initially we note that negligence of an equine activity sponsor neither is one of the exceptions to immunity listed in Section 2(b), nor is it included in the non-exclusive list of inherent risks of equine activity under Indiana Code section 34-6-2-69. Thus, Indiana’s Equine Activity Statute, like equine activity [**15] statutes in some states but unlike some others, is silent on the place of sponsor negligence in the overall scheme of equine liability. Compare Lawson v. Dutch Heritage Farms, Inc., 502 F.Supp.2d 698, 700 (N.D. Ohio 2007) (noting Ohio’s Equine Activity Liability Act, like some other states?, is “silent as to simple negligence as an inherent risk”) (quotation omitted); with Beattie v. Mickalich, 486 Mich. 1060, 1060 784 N.W.2d 38, 2010 Mich. LEXIS 1452, 2010 WL 2756979, at *1 (Mich., July 13, 2010) (per curiam) (Michigan’s Equine Activity Liability Act abolishes strict liability for equines but expressly provides liability is not limited “‘if the . . . person . . . [c]ommits a negligent act or omission that constitutes a proximate cause of the injury?” (quoting Mich. Comp. Laws § 691.1665)). Because it is as important to recognize what a statute does not say as what it does say, City of Evansville v. Zirkelbach, 662 N.E.2d 651, 654 (Ind. Ct. App. 1996), trans. denied, and [HN8] statutes granting immunity, being in derogation of the common law, are strictly construed, see Mullin v. Municipal City of South Bend, 639 N.E.2d 278, 281 (Ind. 1994), we conclude the Equine Activity Statute was not intended by the general assembly [**16] to abrogate the cause of action for common-law negligence of an equine activity sponsor. However, pursuant to the clear text of the statute, a negligence action is precluded if the injury resulted from an inherent risk of equine activities and the facts do not fit one of the exceptions to immunity provided by Section 2(b). Stated differently, if none of the Section 2(b) exceptions apply, then an equine activity sponsor is not liable for failing to use reasonable care to mitigate an already inherent risk of equine activities that ultimately resulted in a participant’s injury.

[*940] Turning to Perry’s claim, she was injured when unexpectedly kicked by a horse that became agitated during the 4-H Club’s Round Robin Competition. The horse became agitated because another horse was standing too close nearby and began sniffing its rear, and to remove the danger to the child handling the other horse, Perry intervened. The statutory definition of “inherent risks of equine activities” includes, without limitation, “[t]he unpredictability of an equine’s reaction to such things as sound, sudden movement, unfamiliar objects, people, or other animals,” and “[t]he propensity of an equine to behave in ways [**17] that may result in injury, harm, or death to persons on or around the equine.” Ind. Code § 34-6-2-69. Such risks directly caused Perry’s injury, in that the horse kicked as part of an unpredictable reaction to the other horse nearby and, Perry alleges, the close quarters and unfamiliar environment of the Show Barn. See Kangas v. Perry, 2000 WI App 234, 239 Wis.2d 392, 620 N.W.2d 429, 433 (Wis. Ct. App. 2000) (based on Wisconsin’s similar definition of inherent risks, concluding “horses? propensity to move without warning is an inherent risk of equine activity contemplated by the statute”), review denied. We therefore conclude Perry’s injury resulted from inherent risks of equine activities within the meaning of the Equine Activity Statute.

Perry argues the likelihood of a horse becoming agitated and kicking, and a child becoming endangered and needing to be rescued by a supervisor such as Perry, were unreasonably increased by the 4-H Club’s decision to hold the Round Robin Competition in the Show Barn, a cramped space unfamiliar to the horses. Even if that is true, however, the 4-H Club’s conduct would have contributed to Perry’s injury only by heightening the already inherent risk that a horse might [**18] behave unpredictably and in an injury-causing manner. Thus, Perry’s argument that her injury resulted not from an inherent risk of equine activities, but from the 4-H Club’s negligence in its manner of staging the Round Robin Competition, amounts to hair splitting irrelevant to the Equine Activity Statute. As explained above, the statute does not require that an equine activity sponsor’s alleged negligence in no way contribute to the injury complained of. Rather, the Equine Activity Statute only requires that, in order for immunity to apply, the injury must have resulted from broad categories of risk deemed integral to equine activities, regardless of whether the sponsor was negligent. See Ind. Code §§ 34-6-2-69; 34-31-5-1.

Perry also relies on cases from other jurisdictions that, while involving similar statutes, are distinguishable on their facts. In Steeg v. Baskin Family Camps, Inc., 124 S.W.3d 633 (Tex. App. 2003), review dismissed, the court held summary judgment for the defendant improper where there was evidence the proximate causes of the rider’s fall included the saddle slipping and the defendant’s negligent failure to secure the saddle. Id. at 639-40. In Fielder v. Academy Riding Stables, 49 P.3d 349 (Colo. Ct. App. 2002), [**19] cert. denied, the court held the defendant was not entitled to immunity where the defendant’s wranglers negligently failed to remove a screaming child from a horse, an “obvious danger” the wranglers had notice of well before the horse bolted. Id. at 351-52. Here, by contrast, there is no evidence the 4-H Club ignored an obvious, imminent danger or that Perry’s injury directly resulted from anything other than unpredictable horse behavior.

In sum, the facts viewed most favorably to Perry as the party opposing summary judgment show her injury resulted from inherent risks of equine activities and the 4-H Club was negligent, if at all, only for [*941] failing to mitigate those inherent risks. Therefore, the trial court properly concluded the Equine Activity Statute bars Perry’s claim and properly granted summary judgment to the 4-H Club.

Conclusion

There are no genuine issues of material fact that the 4-H Club complied with the warning sign requirements of the Equine Activity Statute and that Perry’s injury resulted from inherent risks of equine activities. Therefore, Perry’s claim is barred by the Equine Activity Statute and the trial court properly granted summary judgment to the 4-H Club.

Affirmed.

FRIEDLANDER, [**20] J., and KIRSCH, J., concur.

Massengill, v. S.M.A.R.T. Sports Medicine Clinic, P.C., 996 P.2d 1132; 2000 Wyo. LEXIS 21

James Massengill and Kaylea Massengill, Appellants (Plaintiffs), v. S.M.A.R.T. Sports Medicine Clinic, P.C., Appellee (Defendant).

No. 98-150

SUPREME COURT OF WYOMING

996 P.2d 1132; 2000 Wyo. LEXIS 21

February 14, 2000, Decided

PRIOR HISTORY: [**1] Appeal from the District Court of Laramie County. The Honorable Nicholas G. Kalokathis, Judge.

DISPOSITION: Affirmed.

COUNSEL: Representing Appellants: Robert A. Hampe, Cheyenne, Wyoming (Withdrew pursuant to an Order of Suspension Upon Consent entered in the Wyoming Supreme Court on June 18, 1999.)

Representing Appellee: John I. Henley of Vlastos, Brooks, Henley & Drell, P.C., Casper, Wyoming.

JUDGES: Before LEHMAN, C.J., and THOMAS, MACY, GOLDEN, and TAYLOR, ^* JJ.

* Retired November 2, 1998.

OPINION BY: THOMAS

OPINION

[*1132] THOMAS, Justice.

The only issue in this case is whether a waiver of liability in a contract between S.M.A.R.T. Sports Medicine Clinic, P.C. (S.M.A.R.T.) and James Massengill (Massengill) is enforceable under the standards adopted in Schutkowski v. Carey, 725 P.2d 1057 (Wyo. 1986) and followed in later cases. Massengill was using a lat-pull-down machine at S.M.A.R.T. when a pin used to secure the weights fell out. Apparently the pin did not fit properly in the machine, and when the pin fell out, Massengill fell over backwards injuring his wrist. In various statements of the [*1133] issues, Massengill attacks the validity of the waiver of liability on the grounds [**2] that it violated public policy; the business of S.M.A.R.T. is suitable for public regulation; the use of the premises at the time of injury by Massengill is not material; the question of duty is one that must be determined by a trier of fact; and S.M.A.R.T. owed a statutory duty to Massengill which invalidates the waiver. Our review of the record and legal precedent in Wyoming persuades us that the district court ruled correctly that there is no genuine issue of material fact in this case, and S.M.A.R.T. is entitled to judgment as a matter of law. The Order Granting Defendant’s Motion for Summary Judgment is affirmed.

In the Appellants’ Supreme Court Brief, filed on behalf of James Massengill and Kaylea Massengill (collectively the Massengills), these issues are stated:

Issue I

Did the district court error [sic] in validating the “waiver of liability” in the “sports specific training and advanced rehab agreement and release["] due to the fact that:

(A) The release violated public policy,

(B) The business operated by appellee is suitable for public regulation, and

(C) Plaintiff J. Massengill was engaged in non therapeutic activities on the premises of [**3] the medical clinic has no bearing on whether the release should be validated or not?

Issue II

Is the duty issue in this case purely a question of law where the basic facts are undisputed or is the duty issue one which can only be determined by the trier of fact?

Issue III

Did appellee owe a statutory duty of care to appellant which would invalidate the waiver incorporated in the sports specific training and advanced rehabilitation agreement & release?

In the Brief of Appellee S.M.A.R.T. Sports Medicine Clinic, P.C., the issues are stated in this way:

Was the waiver of liability executed by the Appellants valid[?]

(i) Was the Appellee’s waiver language inclusive and unambiguous as required by prior Wyoming Supreme Court case law; [or]

(ii) Is the waiver language of the Appellee contrary to public policy[?]

One evening James Massengill engaged in a conversation at a Cheyenne drugstore with the equity owner of S.M.A.R.T., a physician in Cheyenne. Massengill knew that S.M.A.R.T. had a weight room, and had seen recent advertisements to the effect that the facility offered personal trainers to assist members. In the course of a brief [**4] conversation, Massengill mentioned his interest in S.M.A.R.T.’s facilities, and the physician suggested he come over and try it out. A month or two following the conversation, Massengill went to S.M.A.R.T. and toured the facilities. The purpose of his initial visit was to assure himself that the equipment met his need, which was to get in better condition.

After he had been shown the facilities and the equipment, Massengill was given a Sports Specific Training and Advanced Rehabilitation Agreement and Release (Agreement and Release) to take home and review. Three days later, both Massengill and his wife executed the Agreement and Release, and they began using the facilities. Massengill was present at S.M.A.R.T. almost every day, and he had been using the lat-pull-down machine for nearly a month prior to his injury. He had not asked any questions about using the machine because he had used one previously. On March 13, 1996, Massengill was warming up on the machine, and he noticed that the pin holding the weights was shaped like a “T” rather than the longer “I” usually used. When Massengill pulled the bar down, the pin holding the weights popped out, and he fell over backwards, hitting [**5] his left hand and injuring his wrist.

On May 29, 1997, the Massengills filed their Complaint for Negligence and Damages. The first count of the Complaint for Negligence and Damages was couched in terms of alleged negligence causing injury to James Massengill, and the second count was couched in terms of recovery by Kaylea Massengill [*1134] for loss of consortium based upon her husband’s injuries. Various procedural steps, including discovery, followed the Answer by S.M.A.R.T., which included the affirmative defense of waiver and the affirmative defense that Kaylea Massengill’s claims were derivative of James Massengill’s claim. On October 3, 1997, there was filed by facsimile a Defendant’s Motion for Summary Judgment accompanied by a Memorandum in Support of Defendant’s Motion for Summary Judgment. Additional procedural steps ensued, and on February 2, 1998, the district court entered an Order Granting Defendant’s Motion for Summary Judgment.

The district court ruled that the exculpatory clause, including the release and waiver, was not ambiguous and was enforceable. Since the premise for the grant of the summary judgment by the district court was the language contained in the Agreement [**6] and Release, the district court ruled implicitly that any other issues of fact, genuine or not, were not material. The Massengills have appealed from the Order Granting Defendant’s Motion for Summary Judgment.

In Mercado v. Trujillo, 980 P.2d 824, 825-26 (Wyo. 1999), we summarized our rules with respect to review of summary judgments:

“‘When [HN1] a motion for summary judgment is before the supreme court, we have exactly the same duty as the district judge; and, if there is a complete record before us, we have exactly the same material as did he. We must follow the same standards. The propriety of granting a motion for summary judgment depends upon the correctness of a court’s dual findings that there is no genuine issue as to any material fact and that the prevailing party is entitled to judgment as a matter of law. This court looks at the record from the viewpoint most favorable to the party opposing the motion, giving to him all favorable inferences to be drawn from the facts contained in affidavits, depositions and other proper material appearing in the record.’” Reno Livestock Corporation v. Sun Oil Company (Delaware), Wyo., 638 P.2d 147, 150 (1981). [**7] See also, Blackmore v. Davis Oil Company, Wyo., 671 P.2d 334, 336 (1983).

“A [HN2] summary judgment should only be granted where it is clear that there are no issues of material facts involved and that an inquiry into the facts is unnecessary to clarify the application of law. Johnson v. Soulis, Wyo., 542 P.2d 867 (1975). A material fact is one which has legal significance. Johnson v. Soulis, supra. It is a fact which would establish a defense. Wood v. Trenchard, Wyo.[,] 550 P.2d 490 (1976). [HN3] After the movant establishes a prima facie case the burden of proof shifts to the opposing party who must show a genuine issue of material fact, Gennings v. First Nat’l Bank of Thermopolis, Wyo., 654 P.2d 154 (1982), or come forward with competent evidence of specific facts countering the facts presented by the movant. Matter of the Estate of Brosius, Wyo., 683 P.2d 663 (1984). The burden is then on the nonmoving party to show specific facts as opposed to general allegations. 10 Wright & Miller, Federal Practice and Procedure: Civil § 2727, p. 538. The material presented must be admissible evidence [**8] at trial. Conclusory statements are not admissible. Bancroft v. Jagusch, Wyo., 611 P.2d 819 (1980). We give the party defending the motion the benefit of any reasonable doubt.” Roth v. First Security Bank of Rock Springs, Wyoming, Wyo., 684 P.2d 93, 95 (1984).

Nowotny v. L & B Contract Industries, 933 P.2d 452, 455 (Wyo.1997) (quoting Thomas by Thomas v. South Cheyenne Water and Sewer Dist., 702 P.2d 1303, 1304 (Wyo.1985)).

More specifically and succinctly, with respect to this case, when review is sought of a summary judgment this Court must determine that there is no genuine issue of a material fact and the party prevailing in the district court is entitled to judgment as a matter of law. Utilization of summary judgment serves the purpose of eliminating formal trials where only questions of law are involved. [HN4] In accomplishing the review of a summary judgment resting upon a question [*1135] of law, our review is de novo and affords no deference to the district court’s ruling on that question. E.g., Roberts v. Klinkosh, 986 P.2d 153, 156 (Wyo. 1999); Gray v. Norwest Bank Wyoming, N.A., 984 P.2d 1088, 1091 (Wyo. 1999); [**9] Ahrenholtz v. Time Ins. Co., 968 P.2d 946, 949 (Wyo. 1998).

Our reading of the Agreement and Release convinces us that the intention of S.M.A.R.T. and the Massengills is expressed in clear and unequivocal language. The language clearly assigns the risk to members who agree to be liable for any and all risks. The Agreement and Release continues with an unequivocal statement that S.M.A.R.T. shall not be liable for any injuries or damages to any member or the member’s property, including those caused by the negligence of S.M.A.R.T. It continues with this language:

1. Any member using S.M.A.R.T. SPORTS facility shall undertake any and all risks. The member shall also be liable for any and all risks. S.M.A.R.T. SPORTS shall not be liable for any injuries or damage to any member, or the property of the member, or be subject to any claim, demand, injury or damages whatsoever, including, without limitation, those damages resulting from acts of negligence on the part of S.M.A.R.T. SPORTS, its officers or agents. The member, for himself/herself and on behalf of his/her executors, administrators, heirs, assigns, and assignees and successors, does hereby expressly forever [**10] waive, release and discharge S.M.A.R.T. SPORTS, its owners, officers, employees, agents, assigners and successors from all such claims, demands, injuries, damages, actions or causes of action.

The language of the Agreement and Release is broad, and specifically releases S.M.A.R.T. from claims and actions for negligence. Indeed, the Massengills do not assert that the agreement does not apply to this action; instead, their contention is that the agreement is not enforceable. In the absence of any genuine issue of a material fact with respect to the language of the Agreement and Release, the issue is a pure question of law with respect to whether the district court invoked and correctly applied the pertinent rules of law.

In Shepard v. Top Hat Land & Cattle Co., 560 P.2d 730, 732 (Wyo. 1977), the applicable rule was summarized:

[HN5] If the language of the contract is plain and unequivocal that language is controlling and the interpretation of the contractual provisions is for the court to make as a matter of law. The meaning of the instrument is to be deduced only from its language if the terms are plain and unambiguous. Mauch v. Ballou, Wyo., 499 P.2d 591 (1972); [**11] Craig v. Gudim, Wyo., 488 P.2d 316 (1971); Chandler-Simpson, Inc. v. Gorrell, Wyo., 464 P.2d 849 (1970); Flora Construction Company v. Bridger Valley Electric Association, Inc., Wyo., 355 P.2d 884 (1960); Barlow v. Makeeff, 74 Wyo. 171, 284 P.2d 1093 (1955).

This rule first was alluded to by this Court in Horvath v. Sheridan-Wyoming Coal Co., 58 Wyo. 211, 230, 131 P.2d 315, 321 (1942), and it has been consistently applied over the years, appearing most recently in Saulcy Land Co. v. Jones, 983 P.2d 1200, 1202 (Wyo. 1999).

[HN6] Exculpatory clauses or releases are contractual in nature, and we interpret them using traditional contract principles and considering the meaning of the document as a whole. Milligan v. Big Valley Corp., 754 P.2d 1063, 1065 (Wyo. 1988); Boehm v. Cody Country Chamber of Commerce, 748 P.2d 704, 712 (Wyo. 1987); Schutkowski, 725 P.2d at 1059; Kelliher v. Herman, 701 P.2d 1157, 1159 (Wyo. 1985). The language of the Agreement and Release is clear in manifesting an intention to release S.M.A. [**12] R.T. and those involved with the facility from liability; it specifically states that S.M.A.R.T. will not be held liable for “those damages resulting from acts of negligence on the part of S.M.A.R.T. SPORTS, its officers or agents.” And, just as in Boehm, 748 P.2d at 712, “[a] plain reading of the language in the context of the entire membership application evidences no other rational purpose for which it could have been intended.”

The Massengills endeavor to avoid the release and waiver articulated in the Agreement and Release by arguing that it is not valid as a matter of public policy because the business of S.M.A.R.T. is appropriate for [*1136] public regulation, and the nature of the use of the equipment by Massengill is not material to the public policy or public regulation determination. We said in Fremont Homes, Inc. v. Elmer, 974 P.2d 952, 956 (Wyo. 1999):

[HN7] In Wyoming, a contract limiting liability for negligence may be enforced only if it does not contravene public policy. Schutkowski v. Carey, 725 P.2d 1057, 1059-60 (Wyo.1986); Boehm v. Cody Country Chamber of Commerce, 748 P.2d 704, 710 (Wyo. 1987); Brittain v. Booth, 601 P.2d 532, 535 (Wyo.1979). [**13]

In Schutkowski, 725 P.2d at 1060, this Court adopted from Colorado a four-part test for evaluating a negligence exculpatory clause. [HN8] The factors the court considers are: “(1) whether a duty to the public exists; (2) the nature of the service performed; (3) whether the contract was fairly entered into; and (4) whether the intention of the parties is expressed in clear and unambiguous language.” A comparison of Massengill’s claim with these factors leads to the ineluctable conclusion that the district court’s decision was correct as a matter of law.

We said in Milligan, 754 P.2d at 1066, “[ [HN9] a] duty to the public exists if the nature of the business or service affects the public interest and the service performed is considered an essential service.” We then adopted from California [HN10] a definition of a release agreement affecting the public interest, giving rise to a public duty, which is that it

“concerns a business of a type generally thought suitable for public regulation. The party seeking exculpation is engaged in performing a service of great importance to the public, which is often a matter of practical necessity for [**14] some members of the public. The party holds himself out as willing to perform this service for any member of the public who seeks it * * *. As a result of the essential nature of the service, in the economic setting of the transaction, the party invoking exculpation possesses a decisive advantage of bargaining strength against any member of the public who seeks his services.” (Emphasis added and footnotes omitted.) Tunkl v. Regents of University of California, 60 Cal. 2d 92, 32 Cal. Rptr. 33, 383 P.2d 441, 445-46, 6 A.L.R.3d 693 (1963).

Milligan, 754 P.2d at 1066. We also adopted a [HN11] list of examples of services which are typically subject to public regulation and which demand a public duty or are considered essential. The list includes common carriers, hospitals and doctors, public utilities, innkeepers, public warehousemen, employers, and services involving extra-hazardous activities. Milligan, 754 P.2d at 1066.

Schutkowski was a case involving a sky diving injury, and we held that [HN12] a private recreational business does not qualify as one that owes a special duty to the public nor are its services of a special, highly [**15] necessary nature. Schutkowski, 725 P.2d at 1060. The services offered by S.M.A.R.T. to its members were those of a private recreational business which did not qualify as suitable for public regulation because they did not affect the public interest nor could they be considered as necessary or essential, and there was no greater duty to the public than existed in Schutkowski, Boehm or Milligan. The district court in its Order Granting Defendant’s Motion for Summary Judgment cites and relies upon decisions from other jurisdictions which have held that [HN13] exculpatory clauses in health club contracts do not violate public policy. Schlobohm v. Spa Petite, Inc., 326 N.W.2d 920, 926 (Minn. 1982); Shields v. Sta-Fit, Inc., 79 Wn. App. 584, 903 P.2d 525, 528 (1995). We are persuaded that the approach of the courts in Minnesota and Washington is the correct rule.

Massengill further maintains that he joined S.M.A.R.T. pursuant to a doctor’s order, and as such was receiving an essential service; therefore, S.M.A.R.T. owed him a public duty that is subject to regulation. A casual conversation, at a drugstore one evening, with the doctor/equity [**16] owner of the S.M.A.R.T. facility hardly qualifies as a prescription. The doctor was not Massengill’s treating physician nor was he acting in that capacity; he engaged in the conversation as the owner of the facility and not a physician. Moreover, the record is devoid of evidence showing that on the day he was injured, Massengill was engaging in a rehabilitation program. He admitted joining S.M.A.R.T. to [*1137] get into better physical condition. That was the purpose of his membership at S.M.A.R.T., and it qualifies as a recreational activity and not a practical necessity. Based on Massengill’s own testimony, his membership was purely recreational and not pursuant to a doctor’s order. There is no genuine issue of material fact as to the purpose or nature of Massengill’s use of the S.M.A.R.T. facility that needs to be resolved.

The third factor in the Schutkowski test is whether the contract was fairly entered into. Since membership in a private recreational facility such as S.M.A.R.T. is purely optional and does not qualify as an essential service, no decisive bargaining advantage exists. “A disparity of bargaining power will be found when a contracting party with little or no bargaining [**17] strength has no reasonable alternative to entering the contract at the mercy of the other’s negligence.” Milligan, 754 P.2d at 1066. Similar to the releases in Milligan, which involved an optional ski race, and Schutkowski, which involved sky diving, no evidence suggests that Massengill was unfairly pressured into signing the agreement or was deprived of the opportunity to understand its implications. In fact, after Massengill initially toured the facilities, he was given the Agreement and Release to take with him, which he filled out at home and returned three days later.

In determining that the Order Granting Defendant’s Motion for Summary Judgment should be considered under principles of contract law, we held that the last factor of the Schutkowski test is satisfied in this case. The intent of the parties was clearly expressed in clear and unambiguous language. [HN14] We interpret exculpatory clauses or releases using traditional contract principles, and consider the meaning of the document as a whole. Milligan, 754 P.2d at 1067. Just as in Boehm, 748 P.2d at 712, “[a] plain reading of the language in the context of the [**18] entire membership application evidences no other rational purpose for which it could have been intended.”

In a further effort to avoid the Agreement and Release, the Massengills present an argument that the Recreation Safety Act, Wyo. Stat. Ann. §§ 1-1-121 to 1-1-123 (Lexis 1999), creates a statutory duty on the part of providers of a sport or recreational opportunity because it preserves actions based upon negligence if damage or injury is not the result of an inherent risk of the sport or recreational opportunity. The Massengills rely upon Halpern v. Wheeldon, 890 P.2d 562, 565 (Wyo. 1995), and the distinction drawn in that case between primary assumption of risk and secondary assumption of risk. The thrust of this rather convoluted argument is that, if the conduct of the defendant comes within the category of secondary assumption of risk, a statutory duty is created by the language that preserves actions based on negligence. The Massengills then contend that the Agreement and Release cannot be enforced because it is contrary to the statutory duty. No authority is cited for that precise proposition, and we are satisfied that [HN15] the Recreation Safety Act does not foreclose [**19] the invocation of a contractual release or waiver for negligent conduct that is not released by the assignment of the inherent risk to the person participating in the sport or recreational opportunity under the statute. Indeed, the limited reach of the statute would suggest that a contractual release in addition to the statute would be prudent.

With respect to the claim of Kaylea Massengill for loss of consortium, her cause of action was included in the Order Granting Defendant’s Motion for Summary Judgment. She executed the same Agreement and Release that James Massengill signed. Furthermore, her claim for loss of consortium was derivative of James Massengill’s claim for injuries, and it fails when his claim fails. Verschoor v. Mountain West Farm Bureau Mut. Ins. Co., 907 P.2d 1293, 1301 (Wyo. 1995); Boehm, 748 P.2d at 708.

The only pertinent issue in this case was whether the exculpatory clause should be held to violate public policy and not enforced for that reason. The record reflects that Massengill’s participation was purely recreational and S.M.A.R.T. did not owe him a public duty. S.M.A.R.T. is not engaged in a type of business generally [**20] thought suitable for public regulation, and Massengill was engaged in a recreational activity not an activity pursuant to a physician’s order. The case [*1138] is correctly resolved as a matter of law under principles relating to contract, and the contractual language being clear and unambiguous, there are no genuine issues of material fact. The case is controlled by Schutkowski and the later cases that followed it. We affirm the district court’s Order Granting Defendant’s Motion for Summary Judgment.

Mahan v. Keith Hall, d/b/a Keith Hall Rodeo, 320 Ark. 473; 897 S.W.2d 571; 1995 Ark. LEXIS 296; 68 A.L.R.5th 813

Melonie Mahan, and Melonie Mahan As Next and Best Friend of Shawn Mahan, Appellants, v. Keith Hall, d/b/a Keith Hall Rodeo, Appellee

No. 94-1341

SUPREME COURT OF ARKANSAS

320 Ark. 473; 897 S.W.2d 571; 1995 Ark. LEXIS 296; 68 A.L.R.5th 813

May 15, 1995, Opinion Delivered

May 15, 1995, filed

HEADNOTES

1. APPEAL & ERROR — REVIEW OF DIRECTED VERDICT — WHEN A DIRECTED VERDICT SHOULD BE GRANTED. — Where the appellant challenged the trial court’s decision to direct a verdict in favor of the appellee, the supreme court reviewed the evidence in a light most favorable to the appellant, the non-moving party, and gave it its highest probative value, taking into account all reasonable inferences; a motion for directed verdict may only be granted if there is no substantial evidence to support a jury verdict.

2. NEGLIGENCE — DAMAGES AND BURDEN OF PROOF — NEGLIGENCE DEFINED. — The plaintiff has the burden of proving that he sustained damages, that the defendant was negligent, and that such negligence was the cause of his damages; here, there was no question that the appellant sustained injury and resulting damages; rather, the issue was whether there was substantial evidence of the appellee’s negligence; negligence is the failure to do something which a reasonably careful person would do; a negligent act arises from a situation where an ordinarily prudent person in the same situation would foresee such an appreciable risk of harm to others that he would not act or at least would act in a more careful manner.

3. APPEAL & ERROR — ASSERTION NOT SUPPORTED BY TESTIMONY AS FOUND IN THE ABSTRACT — RECORD ON APPEAL CONFINED TO THAT WHICH IS ABSTRACTED. — The appellant’s assertion that the gate was not maintained in a reasonably safe condition, unsupported by testimony or other evidence as found in the abstract, was not reached on appeal; the record on appeal is confined to that which is abstracted.

4. NEGLIGENCE — FACT THAT AN INJURY OCCURRED WAS NOT OF ITSELF EVIDENCE OF NEGLIGENCE — TRIAL COURT AFFIRMED. — The fact that a injury, collision or accident occurred was not of itself evidence of negligence or fault on the part of anyone; even though the appellants offered testimony that an accident occurred and that one of them suffered damages, they presented no evidence that the appellee was negligent; the trial court’s decision to direct a verdict in the appellee’s favor was affirmed.

COUNSEL: JOHN THROESCH, POCAHONTAS.

TOM GARNER, GLENCOE.

JUDGES: JACK HOLT, JR., Chief Justice

OPINION BY: JACK HOLT, JR.

OPINION

[*474] [**571] JACK HOLT, JR., Chief Justice

This is a negligence case. The appellant, Melonie Mahan, brought suit against the appellee, Keith Hall, d/b/a Keith Hall Rodeo, and the Sharp County Fair Association, on behalf of herself and her minor son, Shawn Mahan, who was injured while attending a rodeo produced by Mr. Hall. The case was settled as to the Sharp County Fair Association, and at trial, the court directed a verdict in favor of Mr. Hall, which is the basis for Ms. Mahan’s sole point of error on appeal. As Ms. Mahan failed to prove that Mr. Hall was negligent, we affirm.

[*475] Facts

On July 8, 1992, sixteen-year-old Shawn Mahan attended a rodeo in Sharp County which was produced by the appellee, Keith Hall, d/b/a Keith Hall Rodeo. Shawn and a friend, Derrick Kildow, went to watch another friend ride in the rodeo, which was located on property owned by the Sharp County Fair Association. While Shawn and Derrick [***2] were standing near a gate outside the arena, but in an area open to the public, a bucking horse broke through the gate, which in turn struck Shawn, causing injuries to his face.

In a complaint against both Mr. Hall and the Sharp County Fair Association, Ms. Mahan alleged that Shawn was a business invitee of Mr. Hall and the Association, each of whom “owed him a duty to use ordinary care [**572] to prevent injuries to him.” Ms. Mahan sought damages for personal injury, both temporary and permanent, pain and suffering, mental anguish, lost wages, and compensatory damages for medical treatment. While Mr. Hall admitted in his answer that the rodeo was open to the public, he denied that he was negligent.

The case settled as to separate defendant Sharp County Fair Association, but proceeded to trial as to Mr. Hall. At trial, Shawn testified that on the night in question, he and Derrick arrived at the arena and sat down in the bleachers before going over to a concession stand to get something to drink. From the concession stand, the two left the arena and walked over to a horse trailer where saddles and rodeo items were being sold and where some smaller children were playing around. [***3] According to Shawn, he and Derrick were standing outside the arena watching a rodeo event when the horse bucked off its rider, circled the inside of the arena, then broke through the gate, injuring him. It was also Shawn’s testimony that the rodeo announcer was standing in front of the gate, approximately one foot away from where he and Derrick were standing, and that the announcer blocked his view when the horse came through the gate.

Shawn further testified that his cheekbone was crushed as a result of the accident, and that he was unable to move his mouth for approximately three months afterward. According to Shawn, he underwent surgery, and has no feeling on the left side of his face. He further stated that he had problems with his jaw, that he [*476] was suffering from frequent headaches, that he was unable to work at his job at IGA for three months, and that he was no longer able to play football. Ms. Mahan corroborated her son’s testimony regarding the extent of his injuries, adding that he was “scared to eat” for a long time after the accident, and that she had incurred medical expenses in the amount of $ 5372.35.

Derrick Kildow testified that he too was injured when [***4] the horse came through the gate, as he had to have stitches after being hit above his right eye. According to Derrick, he and Shawn did not have time to react or to get out of the way when the horse struck the gate, as the announcer was obstructing their view and did not move until the horse got to him and came through the gate.

At the close of Ms. Mahan’s case, Mr. Hall moved for directed verdict on the grounds that Ms. Mahan had failed to show that he had breached a duty of care owed to Shawn or that he was negligent. Ms. Mahan responded that Shawn had paid an admittance to get into the rodeo on the date in question, and, as such, was a business invitee of Mr. Hall, who owed him a duty of care to secure the gate and to see that he was not injured. When the trial court inquired as to the presence of any testimony indicating that Mr. Hall did not secure the gate, Ms. Mahan responded that the fact that the horse came through the gate was “in itself evidence that the gate wasn’t secure,” that Mr. Hall had been producing rodeos for several years and had knowledge of the dangerous propensities of the animals, and that the gate was not maintained in a reasonably safe condition. Mr. Hall [***5] argued that Arkansas Model Jury Instruction (Civil) 603 states that “the fact that an injury, collision or accident occurred is not of itself evidence of negligence or fault on the part of anyone.” The trial court agreed, finding that while Ms. Mahan had proved an accident and had shown where it had occurred, she had not shown any breach of duty on the part of Mr. Hall. It is from the trial court’s granting of Mr. Hall’s motion for directed verdict that Shawn appeals.

Directed verdict

[1] As Ms. Mahan challenges [HN1] the trial court’s decision to direct a verdict in favor of Mr. Hall, we will review the evidence in a light most favorable to Ms. Mahan, the non-moving party, and give it its highest probative value, taking into account all [*477] reasonable inferences. Miller v. Nix, 315 Ark. 569, 868 S.W.2d 498 (1994); Mankey v. Wal-Mart Stores, Inc., 314 Ark. 14, 858 S.W.2d 85 (1993). A motion for directed verdict may only be granted if there is no substantial evidence to support a jury verdict. Id.

[2] We have said that [***6] [HN2] the plaintiff has the burden of proving that he sustained damages, [**573] that the defendant was negligent, and that such negligence was the cause of his damages. Sanford v. Ziegler, 312 Ark. 524, 851 S.W.2d 418 (1993); Fuller v. Johnson, 301 Ark. 14, 781 S.W.2d 463 (1989). Here, there is no question that Shawn sustained injury and resulting damages; rather, the issue before us is whether there was substantial evidence of Mr. Hall’s negligence. See Sanford v. Ziegler, supra. [HN3] Negligence is the failure to do something which a reasonably careful person would do; a negligent act arises from a situation where an ordinarily prudent person in the same situation would foresee such an appreciable risk of harm to others that he would not act or at least would act in a more careful manner. Sanford v. Ziegler, supra; White River Rural Water Dist. v. Moon, 310 Ark. 624, 839 S.W.2d 211 (1992).

[3] Ms. Mahan contends that because Shawn purchased a ticket to [***7] see the rodeo, he was an invitee of Mr. Hall, who, as the producer of the rodeo, owed Shawn a duty to exercise ordinary care to maintain the premises in a reasonably safe condition. See Black v. Wal-Mart Stores, Inc., 316 Ark. 418, 872 S.W.2d 56 (1994). While Ms. Mahan asserts that the gate was not maintained in a reasonably safe condition, she presented no such testimony or other evidence to prove this assertion. And while the trial court and counsel for both Ms. Mahan and Mr. Hall allude to testimony that the gate was tied or chained, we find no such testimony in the abstract. It is fundamental that the record on appeal is confined to that which is abstracted. Davis v. State, 318 Ark. 212, 885 S.W.2d 292 (1994).

[4] While Ms. Mahan maintains that the fact that the horse came through the gate was “in itself evidence that the gate wasn’t secure,” we agree with Mr. Hall’s assertion that “the fact that a injury, collision or accident occurred is not of itself evidence of negligence or fault on the part of anyone.” See AMI 603. Granted, Ms. Mahan, her son Shawn, and Derrick Kildow [*478] offered testimony that an accident occurred [***8] and that Shawn suffered damages, yet they simply presented no evidence that Mr. Hall was negligent. For this reason, we affirm the trial court’s decision to direct a verdict in Mr. Hall’s favor.

Affirmed.

Sweeney v. City of Bettendorf, 762 N.W.2d 873; 2009 Iowa Sup. LEXIS 26

Tara Sweeney, Individually, and by Cynthia Sweeney, Her Mother and Next Friend, Appellants, vs. City of Bettendorf and Bettendorf Parks and Recreation, Appellees.

No. 07-0127

SUPREME COURT OF IOWA

762 N.W.2d 873; 2009 Iowa Sup. LEXIS 26

March 13, 2009, Filed

COUNSEL: Joseph C. Creen of Bush, Motto, Creen, Koury & Halligan, P.L.C., Davenport, for appellants.

Martha L. Shaff and Edward J. Rose of Betty, Neuman & McMahon, P.L.C., Davenport, for appellees.

JUDGES: APPEL, Justice. All justices concur except Cady, J., who dissents and Streit, J., who concurs in part and dissents in part. CADY, Justice (dissenting). STREIT, Justice (concurring in part and dissenting in part).

OPINION BY: APPEL

OPINION

[*875] APPEL, Justice.

This case involves an appeal from a district court order granting the City of Bettendorf summary judgment in a negligent supervision case. Here, an eight-year-old girl was injured by a flying baseball bat at a minor league game while on a field trip sponsored by the Bettendorf Parks and Recreation Department. The district court found that a permission slip signed by the parent of the injured girl amounted to an enforceable anticipatory release of future claims against the City. The district court in the alternative ruled that the plaintiffs failed to introduce [**2] sufficient evidence to show that the City violated a duty of care owed to the plaintiffs. For the reasons expressed below, we affirm in part, reverse in part, and remand the case to the district court.

I. Background Facts and Prior Proceedings.

Eight-year-old Tara Sweeney enjoyed baseball games. She participated in field trips to Davenport, Iowa, sponsored by the Bettendorf Parks and Recreation Department to see minor league baseball games. In the past, according to Tara, the children sat in “comfy seats” behind home plate that were protected by screening.

In 2003, Tara wanted to go to another ball game. Prior to the field trip, Tara’s mother, Cynthia Sweeney, was asked to sign what was entitled a “Permission Slip,” which the Department required of all participants. The text of the “Permission Slip” was as follows:

I hereby give permission for my child Tara M. Sweeney to attend the Bettendorf Park Board field trip to John O’Donnell Stadium with the Playgrounds Program on Monday, June 30, 2003. I realize that the Bettendorf Park Board is not responsible or liable for any accidents or injuries that may occur while on this special occasion. Failure to sign this release as is without amendment [**3] or alteration is grounds for denial of participation.

Prior to signing the “Permission Slip,” Cynthia talked with a supervisor about the trip. She was told the times of the field trip and who would be supervising Tara’s group. She then executed and returned the permission slip to the Department.

At the game, the children did not sit in the “comfy seats” behind screening as they had in the past. Instead, Tara was required by the Department to sit on bleachers or the adjacent grassy area along the third base line that was unprotected by screening or netting. Tara chose a seat in the third or fourth row of bleachers. The Department supervisors did not allow the children to move to another location in the stadium.

At a midpoint in the game, a player lost his grip on a bat. The record indicated that the bat flew a distance of about 120 feet along the third base line at a height of approximately six feet. The bat was airborne for two or three seconds before it struck Tara on the right side of her head. Prior to being struck by the bat, Tara had turned to talk to a friend.

At the time of the incident, no supervisors from the Department were in Tara’s immediate vicinity. One supervisor who viewed [**4] the incident from a distance testified that an adult in the area could possibly have done something, either trying to knock down the bat or yelling for the kids to duck. Cynthia, at her deposition, however, testified that the incident could not have been avoided had an adult been in Tara’s place.

Plaintiffs sued the City and a number of other defendants, including the baseball player involved and the teams playing the [*876] game. The plaintiffs’ claims against the City sounded in negligence.

The City filed a motion for summary judgment asserting that the permission slip constituted a waiver of the plaintiffs’ claims and that, in any event, the plaintiffs could not show a breach of any duty of care owed by the City. With respect to the permission slip, the City noted that the language specifically states that a parent realizes that the “Bettendorf Park Board is not responsible or liable for any accidents or injuries that may occur while on this special occasion” and that “[f]ailure to sign this release” is “grounds for denial of participation.” On the issue of breach of duty, the City argued that there was nothing that the City should have done to avoid the accident.

Plaintiffs resisted and [**5] filed a cross motion for summary judgment. On the issue of waiver, the plaintiffs contended that the permission slip did not amount to a valid anticipatory release of future claims based upon the City’s negligent acts or omissions. The plaintiffs further argued that even if the permission slip amounted to a valid release, it was fatally flawed because it purported to release only the Department and not the City. Finally, plaintiffs asserted even if the permission slip amounted to an anticipatory release of future claims based on acts or omissions of negligence, statutory and common law public policy prevents a parent from waiving such claims on behalf of a minor child.

In resisting the City’s motion for summary judgment based upon the lack of a breach of duty, the plaintiffs, in addition to testimony of lay witnesses, offered a report from Susan Hudson, a professor at the University of Northern Iowa and an expert on playground and park safety. Based on her review, Hudson found that the Department breached its duty of care toward the plaintiffs in several ways. Hudson opined that the Department breached its duty of care by: (1) not informing the Sweeneys about the nature of possible [**6] harm even though Cynthia personally inquired about the nature of the activity; (2) not anticipating the known and foreseeable harm that could occur by not paying attention to the selection of seating; (3) not providing direct instructions to the children about paying attention to the possibility of bats and balls flying into the bleacher area; and (4) not providing direct supervision for children under their care.

The district court granted the City’s motion for summary judgment. The district court found that the permission slip constituted a valid waiver of plaintiffs’ claims. In the alternative, the district court found that the plaintiffs did not present sufficient evidence to establish a breach of duty owed to them. Plaintiffs appealed.

II. Direct vs. Interlocutory Appeal.

At the outset, there is a question of whether this case presents a direct appeal or is interlocutory in nature. [HN1] A direct appeal is heard as a matter of right, while this court has broad discretion to consider whether to hear an interlocutory appeal. Iowa R. App. P. 6.1(4). The central issue is whether an appeal of a district court order which dismisses all claims against one party in a negligence action involving [**7] multiple defendants is direct or interlocutory.

In Buechel v. Five Star Quality Care, Inc., 745 N.W.2d 732 (Iowa 2008), we considered this question. In Buechel, we noted that under our comparative fault statute, fault sharing cannot occur with a defendant who is no longer a party to the litigation through grant of summary judgment. Id. at 735; Spaur v. Owens-Corning Fiberglas Corp., 510 N.W.2d 854, 863 (Iowa 1994). As a [*877] result, the issues in the motion for summary judgment had impact on the issues of liability against the remaining defendants, are not severable, and are therefore interlocutory in nature. Buechel, 745 N.W.2d at 735. Nonetheless, as in Buechel, we exercise our discretion to treat the notice of appeal here as an application for interlocutory appeal, grant the application, and consider the underlying merits. Id. at 736.

III. Standard of Review.

[HN2] We review a district court’s order on a motion for summary judgment for correction of errors at law. Ratcliff v. Graether, 697 N.W.2d 119, 123 (Iowa 2005). [HN3] Summary judgment is appropriate when the moving party shows there is no genuine issue of material fact. Berte v. Bode, 692 N.W.2d 368, 370 (Iowa 2005). Summary judgment should not [**8] be granted if reasonable minds can differ on how a material factual issue should be resolved. Walker v. Gribble, 689 N.W.2d 104, 108 (Iowa 2004).

IV. Discussion.

A. Permission Slip as Anticipatory Release of Claims of Negligence. This case involves an exculpatory provision contained in a permission slip signed by the parent of a minor child in connection with recreational activities sponsored by a municipality. ¹ The validity of exculpatory provisions which release future claims in connection with recreational activities is a topic that has been thoroughly explored in the academic literature. See, e.g., Mary Ann Connell & Frederick G. Savage, Releases: Is There Still a Place for Their Use by Colleges & Universities?, 29 J.C. & U.L. 579 (2003); Mark Seiberling, “Icing” on the Cake: Allowing Amateur Athletic Promoters to Escape Liability in Mohney v. USA Hockey, Inc., 9 Vill. Sports & Ent. L.J. 417 (2002). The academic commentators note courts considering such exculpatory provisions deal with the inherent tensions between the law of torts, which generally requires parties to be responsible for their acts of negligence, and the law of contracts, which allows a competent party to make his [**9] or her own agreements. Connell & Savage, 29 J.C. & U.L. at 580; Seiberling, 9 Vill. Sports & Ent. L.J. at 428.

1 [HN4] While many cases appear to use the terms interchangeably, an exculpatory provision is similar but not identical to an indemnity provision. An indemnity provision ordinarily allocates risks of third party losses among parties to a contract. In an indemnity context, at least one party remains liable for the third party losses. The victim thus still has a source of recovery. An exculpatory provision, however, does not allocate risk between responsible parties but eliminates liability all together. Cathleen M. Devlin, Indemnity & Exculpation: Circle of Confusion in the Courts, 33 Emory L.J. 135, 170-71 (1984).

The early Iowa cases dealing with exculpatory provisions involve real estate contracts. As early as 1921, we considered the effect of a provision in a real estate lease that provided that in no case should the lessor be liable for damage to the property. Oscar Ruff Drug Co. v. W. Iowa Co., 191 Iowa 1035, 181 N.W. 408 (1921). Among other things, we noted that the clause in the lease was couched in general terms and did not specifically exempt the lessor from liability for [**10] its own negligent acts. Id. at 1042, 181 N.W. at 411. As a result, we held that the lease did not release the lessor from damages resulting from the lessor’s own negligence. Id. at 1043, 181 N.W. at 412.

More than thirty-five years later, we considered the effect of provisions in a real estate lease which the tenant claimed relieved the tenant from liability for a fire that was allegedly caused by its own negligence. Sears, Roebuck & Co. v. Poling, [*878] 248 Iowa 582, 81 N.W.2d 462 (1957). The lease in Sears, among other things, obligated the tenant to keep the premises in good condition, “loss by fire . . . excepted.” Id. at 586, 81 N.W.2d at 464. While this contractual provision might have had a bearing on fire losses not caused by the tenant’s negligence, we held that the general exculpatory language did not immunize the tenant from liability for damage to the landlord’s premises caused by its own negligence. Id. at 589, 81 N.W.2d at 466. In reaching this determination, we cited with approval an annotation stating that [HN5] “broad exculpatory provisions” would rarely immunize a defendant for acts of affirmative negligence. Id. at 588, 81 N.W.2d at 465 (citation omitted). We further cited with [**11] approval Oscar Ruff Drug and cases from other jurisdictions holding that contract provisions will not be held to relieve a party of liability for its own negligence unless the intention to do so is clearly expressed. Id. at 591-92, 81 N.W.2d at 467-68; see Oscar Ruff Drug, 191 Iowa at 1035, 181 N.W.2d at 408; see also Fields v. City of Oakland, 137 Cal. App. 2d 602, 291 P.2d 145, 149 (Cal. Ct. App. 1955); Winkler v. Appalachian Amusement Co., 238 N.C. 589, 79 S.E.2d 185, 190 (N.C. 1953); Carstens v. W. Pipe & Steel Co., 142 Wash. 259, 252 P. 939, 941 (Wash. 1927).

Following Sears, we decided Baker v. Stewarts’ Inc., 433 N.W.2d 706 (Iowa 1988), a case outside the real estate setting. In Baker, we considered the validity of a document signed by a plaintiff who claimed that hair straightening products applied to her scalp at a cosmetology school produced subsequent baldness. Baker, 433 N.W.2d at 707. The document stated in relevant part, “I will not hold the Stewart School, its management, owners, agents, or students liable for any damage or injury, should any result from this service.” Id.

In Baker, we held that this document did not amount to an anticipatory release of future claims based upon negligent acts or omissions of the professional [**12] staff of a cosmetology school because a release of such claims would not be apparent to a casual reader. Id. at 709. We cited Sears and dicta in the indemnity case of Evans v. Howard R. Green Co., 231 N.W.2d 907, 916-17 (Iowa 1975), for the proposition that [HN6] general exculpatory provisions do not cover the negligence of a party unless the intention to do so is clearly expressed. Id. In other words, the general exculpatory provision in Baker, which stated that the customer would not hold “management, owners, agents or students liable for any damage or injury,” was insufficient to release the defendant from liability for the negligent acts of its professional staff. Id.

In contrast, in Huber v. Hovey, 501 N.W.2d 53, 56 (Iowa 1993), we held that a document signed by a spectator to an auto race did amount to an enforceable anticipatory release of future claims based on negligent acts or omissions of a party. In Huber, the document in question emphasized that it was a “covenant not to sue” and that it “releases” the promoter “from all liability . . . [for] all loss or damage, and any claim . . . on account of injury . . . whether caused by the negligence of the releasees or otherwise. . . [**13] .” 501 N.W.2d at 54. We distinguished this language from the sort utilized in Baker, noting that the document specifically indicated that it was a release of claims caused by the negligence of one of the parties. Id. at 56; see also Grabill v. Adams County Fair & Racing Ass’n, 666 N.W.2d 592 (Iowa 2003).

The permission slip in this case is much closer to the document in Baker than in Huber. As in Baker, the permission slip contains no clear and unequivocal language that would notify a casual reader that by signing the document, a parent [*879] would be waiving all claims relating to future acts or omissions of negligence by the City. Baker, 433 N.W.2d at 707. The language at issue here refers only to “accidents” generally and contains nothing specifically indicating that a parent would be waiving potential claims for the City’s negligence. See Alliant Energy-Interstate Power & Light Co. v. Duckett, 732 N.W.2d 869, 878 (Iowa 2007) (holding a utility tariff that released utility from “all claims, demands, costs, or expenses for injury . . . or damage” was not sufficient to release utility from its own negligent acts). As noted in a recent best seller, [HN7] the term “accident” normally means “unpreventable [**14] random occurrences.” See Marc Gernstein with Michael Ellsberg, Flirting with Disaster: Why Accidents are Rarely Accidental 3 (2008). The general language in this permission slip simply does not meet the demanding legal standards of our Iowa cases.

While we have not previously considered the effect of exculpatory provisions in the specific context of sponsored recreational activities, we see no basis for departing from the Baker-Huber principles in this context. The cases from other jurisdictions demonstrate the reluctance of courts to provide defendants who sponsor recreational activities a more lenient framework for analyzing exculpatory clauses seeking to limit liability for the sponsors’ own negligence. Several state courts in a recreational context have adhered to a bright-line test, requiring that the specific words negligence or fault be expressly used if an exculpatory provision is to relieve a defendant from liability for its own negligent acts or omissions. See Alack v. Vic Tanny Int’l of Mo., Inc., 923 S.W.2d 330, 337 (Mo. 1996) (noting general exculpatory language releasing “any . . . injuries” and “all claims” does not suffice to release party of its own negligence, because [**15] such language creates a latent ambiguity in exculpatory contracts); Geise v. Niagara County, 117 Misc. 2d 470, 458 N.Y.S.2d 162, 164 (Sup. Ct. 1983) (holding words “fault” or “neglect” must be used to bar claim for party’s own negligence).

Other courts in the context of recreational activities have not required magic words, but have imposed a demanding requirement that the intention to exclude liability for acts and omissions of a party must be expressed in clear terms. Sirek v. Fairfield Snowbowl, Inc., 166 Ariz. 183, 800 P.2d 1291, 1295 (Ariz. Ct. App. 1990) (requiring intention to immunize for negligent acts be clearly and explicitly stated); Turnbough v. Ladner, 754 So. 2d 467, 470 (Miss. 1999) (finding general exculpatory provision inadequate and noting release of acts of a party’s own negligence must be expressed in “specific and unmistakable terms”); Gross v. Sweet, 49 N.Y.2d 102, 400 N.E.2d 306, 309-10, 424 N.Y.S.2d 365 (N.Y. 1979) (noting that while the word “negligence” need not specifically be used, words conveying a similar import must appear). ² The approach of these cases is [*880] consistent with the approach in Iowa exculpatory clause cases generally. See Baker, 433 N.W.2d at 709 (requiring a clear and unequivocal expression). We see no reason [**16] to relax from the approach in Baker merely because this case involves a recreational activity.

2 Even in these jurisdictions, the better practice is to expressly use the term “negligence” in the exculpatory agreement. See Swartzentruber v. Wee-K Corp., 117 Ohio App. 3d 420, 690 N.E.2d 941, 945 (Ohio Ct. App. 1997) (noting that the “better practice” would be to expressly include the word “negligence”); Dobratz v. Thomson, 161 Wis. 2d 502, 468 N.W.2d 654, 663 (Wis. 1991) (refusing to adopt a magic words test, but noting the use of term “negligence” would be “very helpful”); see also Steven B. Lesser, How to Draft Exculpatory Clauses That Limit or Extinguish Liability, 75 Fla. B.J. 10, 14 (Nov. 2001) (noting from a practical standpoint, utilization of the word “negligence” should increase the likelihood of enforcement); Kevin G. Hroblak, Adloo v. H.T. Brown Real Estate, Inc.: “Caveat Exculpator”–An Exculpatory Clause May Not Be Effective Under Maryland’s Heightened Level of Scrutiny, 27 U. Balt. L. Rev. 439, 469 (1998) (noting a risk adverse drafter should use the word “negligence” in all exculpatory clauses).

In looking at cases involving recreational activities, language similar to that used by the City in this case has been [**17] found insufficient to support a release of a party’s own negligence. For example, in Doyle v. Bowdoin College, 403 A.2d 1206, 1208 (Me. 1979), the court found the use of the term “accidents” insufficient to provide a basis for release from a party’s own negligence. See Hroblak, 27 U. Balt. L. Rev. at 471 (noting drafter should not seek to release party from any “accidents” because the term is ambiguous and insufficient to release own negligent acts); see also O’Connell v. Walt Disney World Co., 413 So. 2d 444, 446-47 (Fla. Dist. Ct. App. 1982) (finding language stating company held harmless from liability and from risks inherent in riding activity not sufficient to release its own negligence); Calarco v. YMCA of Greater Metro. Chicago, 149 Ill. App. 3d 1037, 501 N.E.2d 268, 272-73, 103 Ill. Dec. 247 (Ill. App. Ct. 1986) (holding provision to hold YMCA “free from any and all liability” and discharging “any and all rights and claims for damages” not sufficient to relieve YMCA of liability for its own negligence).

For the reasons expressed above, we hold that the language in the permission slip in this case does not constitute an enforceable anticipatory release of claims against the City for its negligent acts or omissions in [**18] connection with the field trip. ³

3 As a result of our disposition of the release issue, we do not consider four other arguments advanced by the plaintiffs. First, we do not consider whether the failure to specifically name the City in the release prevents its enforcement by the City. Second, we also do not address the question of whether a parent may release the claims of a minor for the negligent acts or omissions of a sponsor of recreational events. The case law from other jurisdictions is divided on this issue. Compare Hojnowski v. Vans Skate Park, 187 N.J. 323, 901 A.2d 381, 389-90 (N.J. 2006), with Zivich v. Mentor Soccer Club, Inc., 82 Ohio St. 3d 367, 1998 Ohio 389, 696 N.E.2d 201, 205 (Ohio 1998). See generally Doyice J. Cotten, Sarah J. Young, & Sport Risk Consulting, Effectiveness of Parental Waivers, Parental Indemnification Agreements, & Parental Arbitration Agreements as Risk Management Tools, 17 J. Legal Aspects Sport 53 (2007). Third, we do not consider the implications on this case, if any, of Iowa Code section 599.2 (2003), which allows a minor to disaffirm contracts with certain exceptions. Fourth, we do not consider the general question of whether public policy voids a contract provision releasing claims of negligence [**19] under the circumstances presented here. See Tunkl v. Regents of Univ. of Cal., 60 Cal. 2d 92, 32 Cal. Rptr. 33, 383 P.2d 441, 446-47 (Cal. 1963).

B. Application of Inherent Risk Doctrine to Defeat Negligent Supervision Claim. The City, while acknowledging that it owed Tara a duty of care, seeks to limit that duty through the application of the inherent risk doctrine. The City claims that the risk of being injured by flying bats and balls when seated outside screening is unavoidable as it is an inherent part of attending a baseball game. As a result, the City claims, it had no duty to protect Tara from the subsequent injuries. [HN8] The question of the proper scope of legal duty is a question of law to be determined by the court. J.A.H. ex rel. R.M.H. v. Wadle & Assocs., P.C., 589 N.W.2d 256, 258 (Iowa 1999); Leonard v. State, 491 N.W.2d 508, 511-12 (Iowa 1992).

In support of its position, the City cites Anderson v. Webster City Community School District, 620 N.W.2d 263 (Iowa 2000). In Anderson, a seven-year-old boy broke his leg while sledding during a noon recess at his elementary school. [*881] Anderson, 620 N.W.2d at 265. The jury instruction in that case noted that some risks naturally attend participation in recreational activities [**20] and that the sponsor has a duty only to protect a participant from unreasonable risks of harm. Id. at 266. The Anderson court noted that the instruction was similar to the “primary assumption of risk doctrine” which, while no longer utilized in Iowa, was an alternative expression for the proposition that a defendant is not negligent or owed no duty for risks inherent in certain activities. Id. at 267.

The City also cites Dudley v. William Penn College, 219 N.W.2d 484 (Iowa 1974), in support of its motion for summary judgment. In Dudley, a plaintiff baseball player, who was hit by a foul ball, claimed that the college should have had dugouts or netting protecting the participants from the playing field. 219 N.W.2d at 485. We rejected that claim, noting that the duty that was owed extended only to those risks that were unreasonable. Id. at 486-87. “[P]layers in athletic events accept the hazards which normally attend the sport.” Id. at 486. As a result, we held that the injured player did not have a cause of action against the coach and college. Id. at 487. In sum, the City argues that it did not breach its duty of care because being struck by a bat is an inherent risk of attending a [**21] minor league baseball game.

Plaintiffs view the case differently. They distinguish Anderson on the ground that the City had a much greater control over the activities of the children in this case. They note that the City determined that Tara would sit on bleachers unprotected by screening and that the City chose not to follow accepted recreational and leisure standards for the proper safety and supervision of children by failing to ensure direct supervision and by failing to warn them and their parents of the danger of flying bats when sitting in unprotected areas. The plaintiffs further note that in Anderson, whether the defendants unreasonably failed to protect the plaintiff was a question for the jury to decide.

The plaintiffs assert Dudley is inapposite. They see Dudley as a variant of the limited liability rule which relieves baseball park owner-operators of responsibility for flying objects. Here, however, the question on appeal relates not to the duty of the owner-operator of a baseball facility, but to the duty of the City to properly supervise Tara while attending the game. The City, plaintiffs argue, directed Tara to sit in an unprotected area and then did not provide adequate [**22] direct supervision in that area. Further, plaintiffs argue that their expert provided a sufficient basis for a jury to determine that the City acted unreasonably under all the facts and circumstances.

In the majority of cases, spectators sitting outside protective netting at baseball stadiums have been unable to recover from owners or operators for injuries related to errant bats and balls on the ground that such injuries were an “inherent risk” of attending the game. See generally James L. Rigelhaupt, Jr., Annotation, Liability to Spectator at Baseball Game Who is Hit by Ball or Injured as Result of Other Hazards of Game, 91 A.L.R.3d 24 (1979). Claims against owners or operators for injuries incurred by flying bats and balls that have been decided after the movement toward comparative negligence tend to characterize nonliability as based on a “limited duty” theory. See, e.g., Vines v. Birmingham Baseball Club, Inc., 450 So. 2d 455, 456 (Ala. 1984) (Torbert, C.J., concurring specially); Lawson v. Salt Lake Trappers, Inc., 901 P.2d 1013, 1015-16 (Utah 1995); Perez v. McConkey, 872 S.W.2d 897, 900 (Tenn. 1994); Daniel E. Wanat, Torts and Sporting Events: Spectator [*882] & Participant Injuries–Using [**23] Defendant’s Duty to Limit Liability as an Alternative to the Defense of Primary Implied Assumption of Risk, 31 U. Mem. L. Rev. 237 (2001).

Regardless of whether the approach is characterized as involving inherent risk or a limited duty, courts applying the doctrine have held that the owner or operator of a baseball stadium is not liable for injury to spectators from flying bats and balls if the owner or operator provided screened seating sufficient for spectators who may be reasonably anticipated to desire such protection and if the most dangerous areas of the stands, ordinarily the area behind home plate, were so protected. Quinn v. Recreation Park Ass’n, 3 Cal. 2d 725, 46 P.2d 144, 146 (Cal. 1935); Akins v. Glens Falls City Sch. Dist., 53 N.Y.2d 325, 424 N.E.2d 531, 533-34, 441 N.Y.S.2d 644 (N.Y. 1981). In Arnold v. City of Cedar Rapids, 443 N.W.2d 332, 333 (Iowa 1989), we adopted a version of the limited duty rule in a premises liability case with respect to misthrown balls. ⁴

4 There has been some resistance to inherent risk or the limited duty doctrine. For example, Professor James noted long ago that the primary assumption of risk doctrine, of which the limited duty rule is a variant, provides “an exceptional curtailment of defendant’s [**24] duty below the generally prevailing one to take care to conduct oneself so as not to cause unreasonable danger to others.” Fleming James, Jr., Assumption of Risk, 61 Yale L. J. 141, 168 (1952). More recently, a few judges have directly challenged the limited duty rule. See Maisonave v. Newark Bears Prof’l Baseball Club, Inc., 185 N.J. 70, 881 A.2d 700, 710-13 (N.J. 2005) (Wallace, J., concurring), superseded by statute, New Jersey Baseball Spectator Safety Act of 2006, N.J. Stat. Ann. § 2A:53A-43-48 (2006); Akins, 424 N.E.2d at 536 (Cooke, J., dissenting). There appears to be a move within the legal profession away from the rule. See Restatement (Third) of Torts: Apportionment of Liability § 3 cmt. c, illus. 6, at 32-33 (2000) (replacing limited duty with comparative fault in cases involving injury to baseball spectators). In addition, recent academic commentary has challenged the doctrine. David Horton, Rethinking Assumption of Risk & Sports Spectators, 51 UCLA L. Rev. 339, 366 (2003) (noting increasingly hazardous nature of stadium seating in light of increased pitching speeds, greater batting capability, and stadium design that places patrons in a zone of danger); Gil Fried & Robin Ammon, Baseball [**25] Spectators’ Assumption of Risk: Is it “Fair” or “Foul”?, 13 Marq. Sports L. Rev. 39, 61 (2002) (same). There is no occasion on this appeal to revisit the application of inherent risk or limited duty doctrine in the context of a premises liability claim.

This case, however, does not involve a premises liability claim against the owner or operator of a baseball stadium. Instead, the issue is whether the district court erred in granting summary judgment in a negligent supervision case against the City based on its view that the injury was due to “an inherent risk in attending the baseball game.”

We conclude that the district court erred in granting summary judgment based on inherent risk. [HN9] A negligent supervision case is fundamentally different than a case involving premises liability. The eight-year-old child in this case made no choice, but instead sat where she was told by the Department. The plaintiffs further claim that there was inadequate adult supervision where the child was seated. The alleged negligence in this case does not relate to the instrumentality of the injury, but instead focuses on the proper care and supervision of children in an admittedly risky environment. See, e.g., [**26] Stanley v. Bd. of Educ., 9 Ill. App. 3d 963, 293 N.E.2d 417, 422 (Ill. App. Ct. 1973) (holding alleged negligent supervision of children in thrown bat case raises jury question in light of expert opinion); Cook v. Smith, 33 S.W.3d 548, 553-54 (Mo. Ct. App. 2000) (noting acceptance of custody and care of minor child creates duty of care independent of premises liability); Havens v. Kling, 277 A.D.2d 1017, 1018, [*883] 715 N.Y.S.2d 812 (N.Y. App. Div. 2000) (holding parents of eleven-year-old inexperienced golfer did not have claim against twelve-year-old golfer who hit son on the head with club, but did have claim against golf shop and event sponsor for negligent supervision); Gordon v. Deer Park Sch. Dist. No. 414, 71 Wn.2d 119, 426 P.2d 824, 828 (Wash. 1967) (finding possible negligence claim where bat slips from hands of teacher).

Viewed as a negligent supervision case, the City had a duty to act reasonably, under all the facts and circumstances, to protect the children’s safety at the ball park. City of Cedar Falls v. Cedar Falls Cmty. Sch. Dist., 617 N.W.2d 11, 16-17 (Iowa 2000). The gist of the plaintiffs’ claim is that a substantial cause of the injury was the supervisors’ decision to allow the children, who cannot be expected to be vigilant [**27] at all times during a baseball game, to be seated in what a jury could conclude was an unreasonably hazardous location behind third base instead of behind the safety of protective netting. From this perspective, the inevitable exposure of the children to flying balls and bats that arises from sitting outside the range of protective netting does not provide a complete defense, but instead is a factor for a jury to consider in determining whether the acts and omissions of the supervisors were reasonable under all the facts and circumstances. As in Anderson, moreover, [HN10] whether a defendant has breached its duty of care under all the circumstances is ordinarily a jury question, particularly where the plaintiff has offered expert testimony indicating that the defendant did not follow customary practices for the safety of children when engaged in recreational activities. Anderson, 620 N.W.2d at 266-67.

As a result, the City is not entitled to summary judgment with respect to the specifications of negligence in the plaintiffs’ expert report on the ground of “inherent risk” or the “limited duty doctrine.” [HN11] The extent to which an injured party knowingly engages in risky behavior in a negligent [**28] supervision case is a factor for the fact finder to consider in the framework of comparative fault.

C. Cause in Fact Challenge to Claim of Lack of Direct Supervision. The City also advances an alternate argument in partial defense to some aspects of the plaintiffs’ negligent supervision claim. To the extent that the plaintiffs’ case rested on the failure to have adult supervision in close proximity to Tara when the children were seated along the third base line, the City argued that such direct supervision would not have made a difference. The City’s argument amounts to a claim that even if the City breached its duty toward Tara by not providing adequate adult supervision, that breach of duty was not the cause of Tara’s injuries.

We have held that [HN12] causation has two components: cause in fact and legal cause. Faber v. Herman, 731 N.W.2d 1, 7 (Iowa 2007). Cause in fact is a but-for test, while determination of legal or proximate cause reflects a policy judgment that the cause of the accident is not so remote or attenuated that liability should not be imposed. Id. Ordinarily, determination of cause in fact is a question for the fact finder to determine. Id.

Conceding for purposes of summary [**29] judgment that the City had a legal duty to reasonably supervise its charges, and further assuming that the City breached its duty of reasonable care by failing to provide direct supervision to the children in a ratio of one adult for ten children as suggested by plaintiffs’ expert, the alleged breach of duty cannot satisfy the “but-for” element of proximate cause for Tara’s injuries [*884] as a matter of law. Although whether a breach of duty was a cause in fact of injuries sustained by the plaintiff is ordinarily a fact question, the evidence in this case, even when viewed in the light most favorable to the plaintiff, does not establish a triable issue.

[HN13] In order to establish cause in fact, the plaintiff need not show certainty or inevitability, but the plaintiff must offer something beyond mere conjecture and speculation. Easton v. Howard, 751 N.W.2d 1, 6 (Iowa 2008) (quoting George v. Iowa & S.W. Ry. Co., 183 Iowa 994, 997-98, 168 N.W. 322, 323 (1918)). A plaintiff must offer sufficient evidence for a fact finder to conclude by a preponderance of evidence that the injuries that occurred would likely have been avoided absent the breach of duty. Mere guesswork about what might have occurred [**30] is not enough.

Here, the evidence simply is not sufficient to allow a reasonable fact finder to conclude that in all likelihood the injuries to Tara would have been avoided if the City would have provided the direct adult supervision as urged by plaintiffs’ expert. Even if the City provided direct supervision in the ratio of one adult for every ten children, there no is reason to believe that an adult supervisor would likely have been able to knock down the bat or warn Tara effectively to avoid injury.

In order to block the flying bat, the supervisor would have had to have seen the bat leave the hands of the batter and would have had to have sufficient presence and verve to thrust himself or herself into harm’s way to knock down the projectile. This scenario is improbable enough, but there is also no reason to believe that a supervisor would have been sitting in sufficiently close proximity to be physically able to knock down the bat. In short, the City could have met the plaintiffs’ expert’s standard for direct supervision without affecting the outcome of this tragic affair.

Perhaps realizing the difficulties of persuading a fact finder that a fortuitous courageous block would have occurred [**31] but for the breach of duty, the plaintiffs fall back on a warning theory. While an adult seated in the vicinity of Tara would have been in a position to provide a louder and more direct warning to her than a supervisor at a greater distance, a reasonable fact finder could not conclude that the accident would have likely been avoided if there was direct supervision as suggested by plaintiffs’ expert. The errant bat in this case did not fly like a helicopter seed dropping from some tree, but rapidly ripped through the air at a low elevation to its unhappy destination. Under these facts, it is anyone’s guess as to whether a sharp verbal warning, even if immediately given, would have done the job. We therefore hold that plaintiffs have failed to generate a fact question on the proposition that enhanced direct supervision would have provided sufficient warning to Tara to avoid the injuries.

Our ruling on the issue of cause in fact is consistent with the case law in a number of other jurisdictions that have considered the issue in the context of flying balls and bats. ⁵ Further, our decision, though disappointing perhaps, will not come as a total shock to the plaintiffs. Tara’s mother testified [**32] in this case that there was nothing a supervisor sitting in the vicinity could have done to avoid Tara’s injuries. [*885] We do not regard Tara’s mother’s testimony as a binding admission, but the observation is obviously consistent with our conclusion that the evidence does not establish a triable issue of cause in fact on the ground of lack of direct supervision. Cf. Meyer v. Mulligan, 889 P.2d 509, 516 (Wyo. 1995) (noting that lay people are generally not competent to pass judgment on legal questions, including cause).

5 See, e.g., Benedetto v. Travelers Ins. Co., 172 So. 2d 354, 355 (La. Ct. App. 1965) (finding no amount of supervision could have altered manner in which bat was thrown); Lang v. Amateur Softball Ass’n of Am., 1974 OK 32, 520 P.2d 659, 662 (Okla. 1974) (finding no triable issue in wild pitch case where it was not reasonably apparent that injuries suffered were caused by wrongful act).

V. Conclusion.

The permission slip in this case did not release the City from alleged acts of future negligence. Further, the doctrine of inherent risk does not provide a basis to defeat the plaintiffs’ theories of negligence in this case. To the extent the plaintiffs argue that the City breached its duty [**33] of care by failing to provide direct supervision to the children once they were seated along the third base line at the ball park, we conclude that the plaintiffs failed as a matter of law to adduce sufficient evidence to raise a triable issue. To this extent, the City is entitled to summary judgment in this case. As a result, the district court’s grant of summary judgment is affirmed in part and reversed in part.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

All justices concur except Cady, J., who dissents and Streit, J., who concurs in part and dissents in part.

CONCUR BY: STREIT (In Part)

DISSENT BY: CADY; STREIT (In Part)

DISSENT

CADY, Justice (dissenting). STREIT, Justice (concurring in part and dissenting in part).

I respectfully dissent. My departure from the decision of the majority is based on two principal reasons, both tied by a common thread. This common thread is woven with the clear understanding that a baseball game–America’s pastime–presents a known, but acceptable, threat of harm to spectators. This threat, of course, comes from baseballs and, on very rare occasions, bats or broken pieces of bats that enter the spectator area from the playing area. While these objects become coveted possessions [**34] for spectators of all ages, they are at the same time an inherent danger of attending the game. This danger is the basis for the lawsuit in this case, which I believe should be thrown out by a call made with relative ease.

I. Release of Liability.

First, I believe the release of liability signed by the parents of the child hit by the baseball bat in this case was valid and prevents the parents from suing. The majority, of course, concludes the release was insufficient to cover the particular claim of negligent supervision brought against the city parks and recreation department, who organized the field trip to the ballgame. I agree the release would not cover the full range of injuries a child could reasonably be expected to encounter during a supervised field trip to a professional baseball park, but I believe it at least covered the very obvious and common danger associated with watching a baseball game–the very purpose of the field trip–that any reasonable parent would have understood and contemplated when deciding to permit their child to attend a baseball game.

The majority seems to construct a rule that invalidates all but the most sophisticated and carefully drawn releases by [**35] focusing on the general principle of law that agreements to release a party from liability for his or her own negligence are disfavored. Yet, this broad principle is not a working rule of law and has given way to the more pragmatic, specific rule that a release must clearly identify to a casual reader those claims or injuries covered under the release. Baker v. Stewarts’ Inc., 433 N.W.2d 706, 709 (Iowa 1988). Importantly, a release does not need to specifically mention a party’s “own negligence” to be valid. In proper context, [*886] most releases could only have meaning as applied to common claims of negligence. Instead, the inclusion of such language merely helps remove any doubt that the release intended to cover any circumstance under the umbrella of negligence. Yet, the critical inquiry is whether the incident claimed to be covered under the release was unambiguously identified to a casual reader.

For example, in Baker a release of “liability for any damage or injury” between a cosmetology school and a patron of services performed by students at the school did not cover an injury to the hair and scalp of the patron that was the subject of a negligence claim for liability against the professional [**36] staff who supervised the student services. Id. The language of the release failed to “clearly and unequivocally” express to a casual reader of the release that it included professional staff in the release of liability. Id. We did not totally invalidate the release as too vague due to the absence of any specific mention of negligence, but only found the language of the release was not broad enough to include professional staff. Id. A patron of the cosmetology school would not understand that he or she was releasing the professional staff from liability by casually reading the release. Id. Similarly, in Huber v. Hovey, 501 N.W.2d 53, 54 (Iowa 1993), we were presented with a release of “all liability” for any claim of injury “whether caused by the negligence of the releasees or otherwise.” The release was between a racetrack and spectators who entered the pit area of the racetrack, and we found the release did cover a spectator who entered the pit area and was injured when a wheel of a race car came off and struck the spectator. Id. at 56-57. In response to the argument that the language of the release did not sufficiently identify the accident, we found the release covered the claim [**37] because it clearly identified the parties to the release, including spectators who entered the pit area, and clearly covered personal injuries to spectators who entered the pit area. Id. Under the circumstances, a casual signer of the racetrack release would understand that the injuries referred to in the release included injuries associated with car racing that could be expected to occur in the pit area. We did mention the release specifically covered injuries caused by the track’s own negligence, but only to further clarify that the release covered a broad range of personal injuries to spectators. The use of the term “negligence” in the release only helped clarify the broad type of injuries covered. It was not a predicate to covering any injury.

Overall, the Baker-Hovey approach considers the context and subject of a release between the parties and the language expressed in the release and looks to consider whether a casual signer would understand the injury or incident at issue was unambiguously covered. In this case, the language of the release may not cover a broad range of injuries that could be sustained by children who go on a field trip to a baseball park. For example, the [**38] release did not express the notion that injuries during the transportation of the children would be covered. The subject of the release was a baseball game, and a parent signing the release would likely not have transportation in mind without some specific identification or reference to the transportation component of the field trip. However, the release did have meaning, and that meaning was the city would at least not be liable for those inherent injuries known to occur to spectators of a baseball game–the subject of the release. The release clearly identified the baseball stadium as the subject of the trip and stated the city would not be “liable for any accidents.” At a minimum, any parent [*887] signing the release would understand that those accidents known to occur to spectators were contemplated under the release of liability.

II. No Duty of Care.

There is a second, more fundamental, reason the case should be dismissed. This reason is the city had no duty to protect the children at the baseball park from the inherent risks of the game of baseball as the children sat in their seats watching the game being played.

I completely agree the city had a duty to supervise the children throughout [**39] the field trip and to generally protect the children from reasonably foreseeable harm. However, the creation of a duty of care and the scope of the duty created are always questions of law. Courts have drawn a line on the scope of a duty of care to protect spectators of a baseball game at a baseball park. That line is roughly drawn in an area behind home plate. This area is where spectators need the most protection from foul balls, or perhaps an occasional wild throw. Protection is most needed in this area because the risk of harm to spectators is most foreseeable in this area of a baseball park. Thus, courts have consistently imposed a duty of care on baseball parks to protect spectators from balls entering the spectator area, and baseball parks have responded to this duty by installing protective netting in the area behind home plate.

Of course, protective netting could easily be installed around the entire perimeter of the playing field, which would provide a consistent level of full protection for all spectators in all areas of the baseball park. Yet, courts have almost universally rejected such a notion as a legal duty, driven largely by public policy, which is normally a major [**40] component in deciding to create any duty of care. Thus, baseball parks have only a limited duty to spectators, and this duty is to protect spectators behind the area of home plate from foul balls. There is no duty to protect spectators in other areas of the baseball park, even though a foreseeable risk of harm continues to exist for spectators. Yet, this gap in protection comes into play due to public policy. Spectators want some limited protection from the inherent risks of attending a baseball game, but they also attend the game for the chance to catch a foul ball or a home run ball. This is a time-honored tradition, deeply imbedded into the game itself and the American culture. It is as much a part of the game as the game itself and has become an inherent but acceptable danger for spectators.

The majority throws a knuckleball in an effort to dance around this culture and the supporting legal principles by relying on the general duty of supervision as a separate, more demanding area of tort law. It holds that supervisors of children have a greater duty of care to protect child spectators from the inherent risks of watching a baseball game than the owner of the ballpark by requiring [**41] adult supervisors to place children in seats that are reasonably protected from the inherent risks. Put another way, the majority essentially declares an adult supervisor can commit negligence by allowing a child to sit in an area of the ballpark outside the protective netting. ⁶ This approach by the majority is [*888] scuffed and flawed. Most noticeably, it has no support in the application of the factors that go into the imposition of any duty of care and is detached from the traditions and expectations of the game of baseball.

6 It might be argued that the majority does not actually hold children must be seated behind the netting, but instead could be seated in those areas unprotected by netting that are not unreasonably exposed to the inherent risks of the sudden presence of flying objects. In other words, the majority believes the area of Tara’s seat in this case–thirty feet beyond third base, three or four rows into the spectator area–was an “unnecessarily hazardous location.” There was, of course, no evidence to support such a proposition, and such a proposition is contrary to the accepted configuration of a baseball stadium. This configuration recognizes the unreasonably hazardous [**42] area is behind home plate, which supports a duty of the owner of the ballpark to install protective netting around the area of home plate. Moreover, any spectator who has attended a professional baseball game or two knows that a sharply hit line drive off the bat of a professional baseball player that hooks foul can make any spectator location in the path of the ball, for a split second, hazardous. This hazard is the same whether a spectator is seated thirty feet beyond third base, 130 feet beyond third base, or even 230 feet beyond third base. It is simply of no avail to attempt to distinguish between areas of reasonable hazards outside the area protected by netting and areas of unreasonable hazards outside the area protected by netting. Spectators at a professional baseball game are exposed to inherent dangers most anywhere outside the area protected by netting, and it is a danger society has chosen, until this case, to accept.

At the outset, it must be acknowledged that, from a legal standpoint, this case is not merely about a flying bat. If it was, there could be no liability imposed on the city park and recreation department because a flying bat is too unforeseeable to give rise [**43] to a legal duty of care to protect a spectator. That is, it is not reasonably foreseeable to spectators that a flying bat will leave the playing field of a baseball park and enter the spectator area, especially an area thirty feet beyond third base. While the field trip organizers were charged with the responsibility to protect the children during the trip, a flying bat could not have been reasonably anticipated by the trip organizers as a potential harm to the children as they sat in the area of the ballpark beyond third base. Even on those rare occasions when a bat slips from the hands of a batter while attempting to hit a pitched ball, the bat will most likely travel in the direction of the playing field, not 120 feet into the spectator area. It is an extremely rare event for spectators outside the playing area to be placed in the zone of danger of a flying bat, especially a spectator located 120 feet down the third base spectator area. Consequently, no duty of care could be imposed to protect another against such specific, remote harm.

Nevertheless, the law does not impose a duty of care based on the foreseeability of a specific means of injury. See Nachazel v. Miraco Mfg., 432 N.W.2d 158, 160 (Iowa 1988) [**44] (“In negligence cases it is not necessary to a defendant’s liability that the wrongdoer should have foreseen the extent of the harm or the manner in which it occurred, so long as the injuries are the natural, though not inevitable, result of the wrong.”). Instead, only some type of injury must be foreseeable to give rise to a duty of care. In this case, the known danger is flying objects, which is nearly always a baseball. Thus, the duty of care imposed by the majority applies to all flying objects, including baseballs and flying bats. This means a supervisor must protect children from baseballs in the same way as flying bats. Accordingly, this is the duty imposed by the majority that I believe cannot withstand the scrutiny of the factors we rely upon in deciding to impose a duty of care on people, or the scope of such duty of care.

When courts step up to decide whether or not to establish a duty of care under a particular circumstance, three factors are primarily considered: (1) the relationship between the parties, (2) the reasonable foreseeability of harm, and (3) public policy concerns. See Stotts v. Eveleth, 688 N.W.2d 803, 810 (Iowa 2004). These are the same factors that were [**45] essentially applied [*889] by courts in creating the limited duty of care for baseball parks. Yet, the majority avoids any serious discussion and analysis of these factors, but instead merely recognizes that premise liability law, which supports a limited duty of care, is different from supervision-liability law. The majority finds this difference justifies the imposition of a greater duty of care for supervisors to protect others from a premise-based harm than the entity responsible for the creation of the harm. The rationale for this finding is that the supervisor in this case “directed” the children to sit outside the area protected by the netting.

I agree a supervisor should have a continuing duty of care for the safety of children while at the ballpark to protect children from those foreseeable risks of harm that might be encountered from strangers, horseplay on the steps, or other such events, but not from the very risks unique to the game of baseball and those risks that our law has already decided do not need to be eliminated by the baseball parks. An analysis of the factors used to create a duty of care clearly supports this approach.

First, there is nothing particular about a relationship [**46] between a child spectator and an adult supervisor who accompanies the child to a baseball game that favors the imposition of liability. The relationship between parties is a factor in creating a duty of care because it often introduces special considerations that help support a duty, such as control by one party over the other party or special benefits derived by a party. As applied to a baseball game, this factor actually tends to support liability on the premise owner more than it does for liability of a supervisor. The premise owner has a contractual relationship with the spectator, primarily controls the designation of the area to sit, and receives a financial benefit. Moreover, the premise owner has the greatest practical ability to protect the spectator. For sure, the relationship between a supervisor of a field trip to a baseball game and a participant on the field trip is also marked by control over the participant, but not the same type of control that relates to a reasonable and effective ability to provide protection from the inherent risks of watching the game. That is to say, the relationship does not easily transform into the ability of a supervisor to protect the child [**47] spectator from the inherent risks of the game.

The majority finds supervisors determine where children sit, but the baseball park ultimately controls the seating arrangement. Moreover, the seats around home base protected by netting are usually the most expensive seats and are normally reserved for season ticketholders. It is impractical to conclude the relationship between supervisors and children gave supervisors the ability to seat children behind the protective netting.

Second, the foreseeability of harm to child spectators in an unprotected area of the baseball park is the same, if not greater, for the owner of the premise as it is for supervisors of the spectators. The owner has considerably more knowledge of the baseball park and the dangerous areas of the park. A supervisor should be able to safely expect the most dangerous areas for flying objects have been covered by netting, allowing spectators to sit in unprotected areas that are less dangerous.

Third, and most important, the public policies that support limiting the duty of care to protect spectators from the inherent risks of watching baseball are the same under premise-liability law as under supervisor-liability law. These [**48] public-policy concerns have drawn the line, which leaves spectators unprotected except in an area behind home plate. In the other areas of the baseball park, the opportunity [*890] to catch or retrieve a foul ball has won out over the slight risk of harm presented to spectators. In other words, the known risk of harm is not unreasonable under common, practical standards and policies society has embraced since the game was invented by Alexander Cartwright in 1845. ⁷

7 Alexander Cartwright is recognized as the inventor of modern baseball. He published the rules of baseball in 1845, and his team, the Knickerbocker Club of New York, played the first recorded baseball game in 1846.

Without examining these factors, the majority has changed the game for spectators who bring children to a baseball park to take in the joys of our national pastime. It does this by concluding children must not be exposed to the same inherent risks of attending a baseball game as unsupervised spectators, and by placing the responsibility for protecting children from the inherent risks of attending a baseball game on adults who accompany children to the game. This conclusion, at its core, can only be explained by policies [**49] of overprotectionism and the innate desire to remove children from all potential harm they might encounter in life. Yet, this goal can go too far and can end up depriving children of some of the most rewarding and beneficial experiences of their youth. This will be the likely result of the overprotective decision by the majority in this case.

With this decision, America’s pastime risks becoming a different, or less frequent, event for children than enjoyed in the past. With the imposition of liability on supervisors and others who accompany children to a professional baseball game, the common field trip, as well as the simple pleasure of a parent accompanying a child and the child’s friend to a baseball park, gives rise to new considerations that can only diminish enthusiasm for the trip. Court decisions can have vast consequences on our way of life, and a trip to the ballpark with children in tow may now need to be prCity of Bettendorf and Bettendorf Parks and Recreation,eceded by a trip to a lawyer’s office to obtain a release containing all the essential legal language demanded by the majority or be confined to the most expensive seats behind home base, safely protected from the excitement and anticipation of catching a foul ball.

Just [**50] as there was no joy in Mudville the day the mighty Casey struck out, there is no joy on this day around Iowa’s ballparks. ⁸ The majority has taken a mighty swing at the correct result in this case and missed by a mile.

8 The legendary baseball poem, “Casey at the Bat,” was written by Ernest Lawrence Thayer, and first published in the San Francisco Examiner on June 3, 1888.

I concur in the majority’s opinion in regard to the release of liability signed by the parent of the child, but join Justice Cady’s dissent as to the duty of care.

WordPress Tags: Sweeney,Bettendorf,Iowa,LEXIS,Tara,Cynthia,Mother,Friend,Appellants,Parks,Recreation,Appellees,SUPREME,COURT,March,COUNSEL,Joseph,Bush,Motto,Koury,Halligan,Davenport,Martha,Shaff,Edward,Rose,Neuman,McMahon,JUDGES,APPEL,Justice,justices,Cady,Streit,OPINION,district,judgment,supervision,Here,girl,league,Department,permission,plaintiffs,Background,Facts,Prior,Proceedings,ball,Slip,participants,text,Park,Board,John,Donnell,Stadium,Playgrounds,Program,June,accidents,injuries,Failure,amendment,alteration,denial,participation,supervisor,Instead,bleachers,area,fourth,supervisors,location,midpoint,player,feet,incident,defendants,teams,negligence,waiver,event,accident,omissions,policy,addition,testimony,Susan,Hudson,professor,Northern,playground,Sweeneys,attention,selection,instructions,balls,bleacher,Direct,Interlocutory,Appeal,outset,discretion,action,Buechel,Five,Star,Care,statute,defendant,litigation,Spaur,Owens,Fiberglas,Corp,impact,Standard,Review,correction,errors,Ratcliff,Graether,Summary,fact,Berte,Bode,Walker,Gribble,Discussion,Anticipatory,Release,Claims,provision,connection,topic,literature,Mary,Connell,Frederick,Savage,Releases,Still,Place,Colleges,Universities,Mark,Cake,Amateur,Athletic,Promoters,Escape,Mohney,Hockey,Vill,Sports,commentators,tensions,torts,agreements,context,victim,recovery,Devlin,Exculpation,Circle,Confusion,Courts,Emory,estate,Oscar,Ruff,Drug,Among,clause,tenant,Sears,Roebuck,premises,landlord,determination,approval,annotation,citation,jurisdictions,intention,Fields,Oakland,Winkler,Appalachian,Amusement,Carstens,Pipe,Steel,Wash,Baker,Stewarts,plaintiff,hair,products,Stewart,School,management,owners,agents,students,injury,reader,dicta,Evans,Howard,proposition,customer,Huber,Hovey,spectator,auto,covenant,promoter,account,Grabill,Adams,Fair,Alliant,Energy,Interstate,Power,Duckett,tariff,seller,occurrences,Marc,Gernstein,Michael,Ellsberg,Disaster,Accidental,basis,reluctance,framework,clauses,Several,Alack,Tanny,Geise,Niagara,Misc,requirement,Sirek,Fairfield,Snowbowl,Ariz,Turnbough,Ladner,Miss,Gross,Sweet,agreement,Swartzentruber,Ohio,Dobratz,Thomson,Steven,Lesser,Draft,Exculpatory,Limit,Extinguish,standpoint,utilization,enforcement,Kevin,Hroblak,Adloo,Brown,Real,Caveat,Exculpator,Effective,Under,Maryland,Level,Scrutiny,Balt,example,Doyle,Bowdoin,College,Walt,Disney,World,Dist,Calarco,YMCA,Greater,Metro,Chicago,disposition,arguments,Second,events,Compare,Hojnowski,Vans,Skate,Zivich,Mentor,Soccer,Club,Doyice,Cotten,Sarah,Young,Sport,Risk,Parental,Waivers,Indemnification,Arbitration,Tools,Legal,Aspects,Third,implications,Code,exceptions,Tunkl,Regents,Univ,Rptr,Application,Inherent,Doctrine,Defeat,Negligent,Claim,scope,Wadle,Assocs,Leonard,State,Anderson,Webster,noon,jury,instruction,participant,assumption,Dudley,William,Penn,dugouts,layers,leisure,parents,danger,areas,owner,operators,operator,Further,spectators,stadiums,James,Rigelhaupt,Baseball,Game,Result,Hazards,theory,Vines,Birmingham,Torbert,Lawson,Salt,Lake,Trappers,Utah,Perez,McConkey,Tenn,Daniel,Wanat,Alternative,Defense,Primary,protection,Quinn,Akins,Glens,Falls,Arnold,Cedar,Rapids,version,resistance,curtailment,Yale,Maisonave,Newark,Bears,Prof,Wallace,Jersey,Stat,profession,Restatement,Apportionment,commentary,David,Horton,UCLA,patrons,Robin,Ammon,Foul,Marq,environment,Stanley,Educ,Cook,Smith,acceptance,custody,Havens,Gordon,Deer,teacher,gist,decision,From,perspective,exposure,factor,specifications,extent,behavior,finder,Cause,Challenge,Lack,argument,difference,amounts,causation,components,Faber,Herman,purposes,ratio,Although,speculation,Easton,George,preponderance,Mere,guesswork,presence,verve,projectile,scenario,outcome,affair,helicopter,tree,elevation,destination,admission,observation,conclusion,Meyer,Mulligan,Benedetto,Travelers,manner,Lang,Softball,Okla,theories,PART,CONCUR,DISSENT,departure,America,pastime,threat,possessions,lawsuit,ballgame,purpose,principle,inclusion,circumstance,umbrella,patron,student,absence,racetrack,response,Overall,notion,transportation,identification,reference,component,creation,Thus,perimeter,tradition,American,effort,tort,Most,factors,imposition,traditions,expectations,configuration,Moreover,path,avail,dangers,organizers,direction,Nachazel,Miraco,wrongdoer,relationship,Stotts,Eveleth,analysis,premise,rationale,strangers,horseplay,designation,arrangement,knowledge,policies,Alexander,inventor,team,Knickerbocker,York,joys,adults,life,goal,youth,enthusiasm,decisions,consequences,lawyer,office,excitement,anticipation,Just,Mudville,Casey,ballparks,poem,Ernest,Lawrence,Thayer,Francisco,Examiner,enforceable,three,upon,whether,lessor,scalp,cosmetology,releasees,drafter,four,golfer,triable,baseballs,signer

Give Kids The World, Inc., v. Sanislo, 2012 Fla. App. LEXIS 7403; 37 Fla. L. Weekly D 1143

Give Kids The World, Inc., Appellant, v. Stacy Sanislo and Eric Sanislo, Appellees.

Case No. 5D11-748

COURT OF APPEAL OF FLORIDA, FIFTH DISTRICT

2012 Fla. App. LEXIS 7403; 37 Fla. L. Weekly D 1143

May 11, 2012, Opinion Filed

PRIOR HISTORY: [*1]

Appeal from the Circuit Court for Osceola County, Jeffrey Fleming, Judge.

COUNSEL: Wm. Jere Tolton, lll, of Ogden & Sullivan, P.A., Tampa, and Matthew J. Haftel of O’Connor & O’Connor, LLC, Orlando, for Appellant.

Michael J. Damaso, ll, of Wooten, Kimbrough and Normand, P.A., Orlando, and Jack W. Shaw, Jr., of Jack W. Shaw, Jr., P.A., Winter Park, for Appellees.

JUDGES: ORFINGER, C.J., and PALMER, J., concur. COHEN, J., concurs and concurs specially with opinion.

OPINION

PER CURIAM.

Give Kids the World, Inc. (“GKTW”), the defendant below, appeals a final judgment entered against it in a negligence action. GKTW argues that the lower court erred by denying its pretrial motion for summary judgment on its affirmative defense of release. We agree and reverse.

GKTW is a non-profit organization that provides free “storybook” vacations to seriously ill children and their families at its resort village, the Give Kids the World Village (“the Village”). Stacy and Eric Sanislo (“the Sanislos”) are the parents of a young girl with a serious illness. In November 2004, the Sanislos executed a liability release to GKTW in connection with a “wish request” that benefitted their daughter.¹ The release, in pertinent part, provided:

By [*2] my/our signature(s) set forth below, and in consideration of Give Kids the World, Inc. granting said wish, I/we hereby release Give Kids the World, Inc. and all of its agents, officers, directors, servants and employees from any liability whatsoever in connection with the preparation, execution, and fulfillment of said wish, on behalf of ourselves, the above named wish child and all other participants. The scope of the release shall include, but not be limited to, damages or losses or injuries encountered in connection with transportation, food, lodging, medical concerns (physical and emotional), entertainment, photographs and physical injury of any kind.

. . . .

I/we further agree to hold harmless and to release Give Kids the World, Inc. from any and all claims and causes of action of every kind arising from any and all physical or emotional injuries and/or damages which may happen to me/us, or damage to or theft of our personal belongings, jewelry or other personal property which may occur while staying at the Give Kids the World Village.

The wish request was approved and, upon their arrival at the Village from the state of Washington, the Sanislos executed another liability release [*3] with identical language.

1 Fulfillment of a child’s wish is accomplished in conjunction with the Make-AWish Foundation, a separate entity from GKTW.

During the course of her stay at the Village, Stacy Sanislo was injured when she, along with her husband, posed for a picture on a pneumatic wheelchair lift that was attached to the back of a horse-drawn wagon. The lift collapsed because the weight limit had been exceeded, injuring Ms. Sanislo. The Sanislos brought suit against GKTW, alleging that Ms. Sanislo’s injuries were caused by GKTW’s negligence. In its answer, GKTW asserted the affirmative defense of release. Subsequently, GKTW filed a motion for summary judgment, arguing that the signed liability releases precluded a finding of liability. The Sanislos filed a motion for partial summary judgment on the issue of release as well. The trial court denied GKTW’s motion, but granted that of the Sanislos.² Following a jury verdict, judgment was entered in the Sanislos’ favor.

2 The parties stipulated that if the trial court granted one of the motions for summary judgment, then the other should be denied.

On appeal, GKTW correctly asserts that it was entitled to summary judgment based on the [*4] release. [HN1] Exculpatory clauses are disfavored under the law, but unambiguous exculpatory contracts are enforceable unless they contravene public policy. Applegate v. Cable Water Ski, L.C., 974 So. 2d 1112, 1114 (Fla. 5th DCA 2008) (citing Cain v. Banka, 932 So. 2d 575, 578 (Fla. 5th DCA 2006)). The wording of the exculpatory clause must be clear and understandable so that an ordinary and knowledgeable person will know what he or she is contracting away. Raveson v. Walt Disney World Co., 793 So. 2d 1171, 1173 (Fla. 5th DCA 2001). This Court has expressly “rejected the need for express language referring to release of the defendant for ‘negligence’ or ‘negligent acts’ in order to render a release effective to bar a negligence action.” Cain, 932 So. 2d at 578. In Cain, this Court noted that an exculpatory clause absolving a defendant of “any and all liability, claims, demands, actions, and causes of action whatsoever” was sufficient to encompass the plaintiff’s negligence action filed against a defendant track owner in connection with motocross bike riding. Id. at 579; see also Hardage Enters., Inc. v. Fidesys Corp., N.V., 570 So. 2d 436, 437 (Fla. 5th DCA 1990) (determining that “any and [*5] all claims, demands, damages, actions, causes of action, or suits in equity, of whatsoever kind or nature” encompassed negligent action). A release need not list each possible manner in which the releasor could be injured in order to be effective. Cf. DeBoer v. Fla. Offroaders Driver’s Ass’n, Inc., 622 So. 2d 1134, 1136 (Fla. 5th DCA 1993).

The instant release contains two separate provisions releasing GKTW from liability. One provision releases GKTW from “any and all claims and causes of action of every kind arising from any and all physical or emotional injuries and/or damages which may happen to me/us . . . which may occur while staying at the Give Kids the World Village.” This language is markedly similar to the language in the release signed by the plaintiff in Cain, which encompassed the release of a negligence action. 932 So. 2d at 577. A second provision releases GKTW from “any liability whatsoever in connection with the preparation, execution, and fulfillment of said wish . . . .” This language is broad enough to encompass negligence claims arising from the injuries suffered by Ms. Sanislo due to the collapse of the wheelchair lift.

The Sanislos argue that the release is not [*6] clear and unambiguous because it applies to liability arising “in connection with the preparation, execution and fulfillment of said wish.” They suggest the nature and scope of the wish is not clear or defined and thus renders the release unenforceable. However, the wish, which was requested by the Sanislos, clearly encompassed events at the Village related to their stay and attendance at Orlando area theme parks. The Sanislos’ interpretation is not likely the interpretation that an “ordinary and knowledgeable person” would give to the clause. See Raveson, 793 So. 2d at 1173. The language used clearly and unambiguously releases GKTW from liability for the physical injuries Ms. Sanislo sustained during her stay at the Village, and was sufficiently clear to make the Sanislos aware of the breadth of the scope of the release and what rights they were contracting away. [HN2] The ability to predict each and every potential injury is unattainable and is not required to uphold an exculpatory provision within a release.

[HN3] In addition to assessing the clarity of the language used in releases, this Court must consider the parties’ relative bargaining power in determining the enforceability of a release. [*7] Ivey Plants, Inc. v. FMC Corp., 282 So. 2d 205, 208 (Fla. 4th DCA 1973). Enforcement of an exculpatory clause has been denied where the relative bargaining power of the contracting parties is unequal and the clause seeks to exempt from liability for negligence the party who occupies a superior bargaining position. Id. However, Florida courts have held that the bargaining power of the parties will not be considered unequal in settings outside of the public utility or public function context. For instance, in Banfield v. Louis, 589 So. 2d 441, 443-44 (Fla. 4th DCA 1991), the court upheld the enforcement of a release executed by a participant in a triathlon and the trial court’s ruling that a disparity in bargaining power was “not applicable to entry of athletic contests of this nature, where a party is not required to enter it and not entitled to participate unless they want to.” The Banfield court emphasized that the application of Ivey Plants was limited to circumstances in which a release was executed on behalf of a public utility or a company serving some public function. Id. at 444-45. Consistent with this analysis, Florida courts have refused to find an inequality of bargaining [*8] power in recreational settings. Id.; DeBoer, 622 So. 2d at 1136. Similarly, in Hardage Enterprises, this Court found that an exculpatory clause in an agreement entered into by the owner of a hotel complex and a construction manager of the complex was enforceable because its language was unambiguous and the parties were not in a position of unequal bargaining power. 570 So. 2d at 438. This Court explained that the case did not present “a situation where public policy mandates the protection of consumers who are offered a contract in a ‘take it or leave it’ form.” Id. at 439.

GKTW argues that the bargaining power of the parties cannot be viewed as unequal, because the Sanislos voluntarily participated in the GKTW program. The Sanislos, for their part, argue that the parties are of unequal bargaining power because they were offered a contract in a “take it or leave it” form, and GKTW gave them no choice but to sign the release in order to have their daughter’s wish fulfilled. Unfortunately for the Sanislos, however, the instant case is more akin to Banfield and DeBoer than it is to Ivey Plants. The Sanislos’ desire to fulfill their ill daughter’s wish is certainly understandable, but the [*9] parents’ desire to fulfill the wish and take advantage of the GKTW program does not equate to unequal bargaining power. The Sanislos were not consumers as contemplated in Hardage Enterprises. They were provided a copy of the release at the time they applied to the Make-A-Wish Foundation and made a decision to waive certain rights. GKTW is entitled to enforcement of that release.

REVERSED.

ORFINGER, C.J., and PALMER, J., concur.

COHEN, J., concurs and concurs specially with opinion.

CONCUR BY: COHEN

CONCUR

COHEN, J., concurring specially.

If I were writing on a clean slate, I would affirm the trial court’s denial of GKTW’s summary judgment. I am bound, however, to follow this Court’s prior decisions that do not require an express reference to negligence in a release in order to render the release effective to such actions. This District stands alone on this position. See Levine v. A. Madley Corp., 516 So. 2d 1101 (Fla. 1st DCA 1987); Van Tuyn v. Zurich Am. Ins. Co., 447 So. 2d 318 (Fla. 4th DCA 1984); Goyings v. Jack & Ruth Eckerd Found., 403 So. 2d 1144 (Fla. 2d DCA 1981); Tout v. Hartford Accident & Indem. Co., 390 So. 2d 155 (Fla. 3rd DCA 1980).

The better view is to require an explicit provision to that [*10] effect. Exculpatory clauses are “by public policy disfavored in the law because they relieve one party of the obligation to use due care, and shift the risk of injury to the party who is probably least equipped to take the necessary precautions to avoid injury and bear the risk of loss.” Tatman v. Space Coast Kennel Club, Inc., 27 So. 3d 108, 110 (Fla. 5th DCA 2009). While those trained in the law might understand and appreciate that the general language releasing a party from any and all liability could encompass the injuries suffered by Ms. Sanislo, a release should be readily understandable so that an ordinary and knowledgeable person would know what is being contracted away. I would suggest that the average ordinary and knowledgeable person would not understand from such language that they were absolving an entity from a duty to use reasonable care. Conversely, a clause which provides a waiver of liability for one’s own negligence is easily understood. The other district courts of appeal have recognized how simple it is to add such a clause in a release. I suggest we do the same.

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Morgan v. State of Tennessee, 2004 Tenn. App. LEXIS 62

Evelean Morgan v. State of Tennessee

No. M2002-02496-COA-R3-CV

COURT OF APPEALS OF TENNESSEE, AT NASHVILLE

2004 Tenn. App. LEXIS 62

November 3, 2003, Session

January 27, 2004, Filed

PRIOR HISTORY: [*1] Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Claims Commission Affirmed. Appeal from the Tennessee Claims Commission No. 99000125 W. R. Baker, Commissioner.

DISPOSITION: Affirmed and remanded.

COUNSEL: David H. Dunaway, LaFollette, Tennessee, for the appellant, Evelean Morgan.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; and Christopher Michael Fancher, Assistant Attorney General, for the appellee, State of Tennessee.

JUDGES: WILLIAM C. KOCH, JR., P.J., M.S., delivered the opinion of the court, in which WILLIAM B. CAIN and PATRICIA J. COTTRELL, JJ., joined.

OPINION BY: WILLIAM C. KOCH, JR., P.J., M.S.

OPINION

This appeal involves a fatal accident at the Colditz Cove State Natural Area in Fentress County. The mother of a woman who fell to her death from the bluff surrounding Northrup Falls filed a claim with the Tennessee Claims Commission. The State of Tennessee denied liability based on (1) the recreational use defense in Tenn. Code Ann. § 70-7-102 (1995), (2) its lack of actual or constructive notice of a dangerous condition, and (3) its assertion that the decedent’s fault exceeded its own. The commissioner granted the State’s motion for summary judgment. [*2] While he did not rely on the statutory recreational use defense, the commissioner determined that the State had no notice of a dangerous condition at the natural area, it was not reasonably foreseeable that intoxicated persons who were unfamiliar with the natural area would hike into the area of the falls in the middle of the night, and the decedent’s actions were the sole proximate cause of her death. The decedent’s mother has appealed. We have determined that the commissioner properly granted the summary judgment because, as a matter of law, (1) the State established a defense under Tenn. Code Ann. § 70-7-102, (2) the decedent’s estate presented no evidence that the State had actual or constructive notice of an allegedly dangerous condition on the trail in the natural area, and (3) the decedent’s fault far exceeded whatever fault could be attributed to the State.

I.

Rochelle Copeland Zegilla and her two small children were living with her mother in mid-1997 following a separation from her husband. On Saturday evening, July 26, 1997, she told her mother that she was “going to go out for awhile,” and then she drove to the Top of the Mountain Lounge in [*3] Jamestown, Tennessee. After the lounge closed at midnight, Ms. Zegilla and four companions ¹ decided to drive to a nearby VFW club. When they arrived at the club, however, they discovered that it had closed earlier than usual. After a brief discussion in the club parking lot, the group decided to continue their drinking and talking in the parking lot of the Colditz Cove State Natural Area.

1 Ms. Zegilla’s companions at the Top of the Mountain Lounge were Chris Smith, Loretta Johnson, Edward Raines, and Larry King.

The Colditz Cove State Natural Area is a 165-acre Class II natural-scientific area in Fentress County owned by the State of Tennessee. It is heavily wooded and contains the 75-foot Northrup Falls and a scenic gorge with interesting rock formations. ² The area has been designated by statute as “worthy of perpetual preservation,” ³ and accordingly, improvements to the area are limited to foot trails, foot bridges, and primitive campgrounds ⁴ and “facilities as may be reasonably necessary . . .for [*4] the safe and proper management and protection of the area.” ⁵ In addition to a parking lot, the State had erected several signs and a gate and had constructed a 1.5 mile foot trail along the bluff overlooking Northrup Falls, as well as a scenic overlook. The State had not installed lights in the parking lot or along the foot trail.

2 Tenn. Code Ann. § 11-14-108(b)(2)(F) (Supp. 2003).

3 Tenn. Code Ann. § 11-14-105(2) (1999).

4 Tenn. Code Ann. § 11-14-106(a)(1)(B) (1999).

5 Tenn. Code Ann. § 11-14-106(a)(2).

All of the group except Mr. Raines had been drinking throughout the evening, and they continued drinking in the parking lot because Messrs. Smith and King had brought along a cooler of beer purchased earlier in the evening at Midway Qwick Stop. After talking for several minutes, the group decided to walk down the foot trail toward Northrup Falls in the pitch dark even though [*5] three of them, including Ms. Zegilla, had never been to Colditz Cove before. The only illumination they had was Mr. King’s flashlight.

When the group reached a fork in the trail, Mr. Raines and Ms. Johnson decided to walk no further and sat near a trash container to talk and drink. Ms. Zegilla and Messrs. Smith and King kept walking along the trail toward Northrup Falls. After they stopped to drink and talk, Mr. King asked Mr. Smith to shine the flashlight into the bushes to enable him to find a place to urinate. Mr. King walked into the bushes and, on his return, he fell over the bluff into the gorge below.

Mr. Smith yelled, “Larry has fallen off,” and called to Mr. Raines for assistance. Mr. Raines made his way down the trail to Mr. Smith and Ms. Zegilla. After they all called out to Mr. King to no avail, Mr. Raines decided to go for help and took the flashlight to help make his way back up the foot path to the parking lot. Ms. Zegilla and Mr. Smith, now joined by Ms. Johnson, continued to call for Mr. King. Mr. Smith decided to start a fire with his shirt to make some light. After his shirt went out, Ms. Zegilla somehow fell over the bluff. The rescue workers who arrived at the [*6] scene at approximately 1:30 a.m. on Sunday, July 27, 1997, found the lifeless bodies of both Mr. King and Ms. Zegilla in the water at the bottom of the falls. An autopsy revealed that Ms. Zegilla’s blood alcohol level was .18%.

On July 23, 1998, Evelean Morgan, Ms. Zegilla’s mother and her personal representative, filed a claim for $ 500,000 with the Tennessee Claims Commission asserting that the State had violated Tenn. Code Ann. § 9-8-307(a)(1)(C) (Supp. 2003) by negligently creating or maintaining a dangerous condition at Colditz Cove State Natural Area. ⁶ The State moved to dismiss the claim on the ground that it was shielded from liability by the recreational use statute [Tenn. Code Ann. §§ 70-7-101, -105 (1995)]. After the claims commissioner denied its motion, the State filed an answer denying Ms. Morgan’s negligence claims. The State asserted, as affirmative defenses, (1) that Tenn. Code Ann. § 70-7-102 shielded it from liability, (2) that it had no actual or constructive notice of a dangerous condition at Colditz Cove State Natural Area and that it was not reasonably foreseeable that intoxicated [*7] persons who were unfamiliar with the natural area would hike into the area of the falls in the middle of the night, and (3) that Ms. Zegilla’s own negligence “contributed in excess of 50% to the cause of her death.”

6 Ms. Morgan also filed a civil damage action in the Circuit Court for Fentress County against Ms. Johnson, Messrs. Smith and Raines, and the estate of Mr. King.

In February 2002, following lengthy and somewhat contentious discovery, the State moved for a summary judgment on two grounds – Tenn. Code Ann. § 70-7-102 and its assertion that Ms. Zegilla’s “negligence was equal to or greater than [the] negligence of the State, if any.” ⁷ In April 2002, Ms. Morgan responded by asserting that the State was not entitled to a judgment on either ground because the State was grossly negligent and because its negligence was greater than Ms. Zegilla’s. The claims commissioner held a hearing on the State’s motion for summary judgment after conducting his own personal inspection of [*8] the Colditz Cove State Natural Area without the lawyers or parties present. On June 5, 2002, the commissioner filed an order granting the State’s motion for summary judgment. While the commissioner declined to base his decision on Tenn. Code Ann. § 70-7-102, he determined that the undisputed evidence demonstrated as a matter of law that Ms. Morgan had not shown that she could prove notice and foreseeability as required by Tenn. Code Ann. § 9-8-307(a)(1)(C) and that Ms. Zegilla was “preponderantly negligent in her own death.” ⁸ The commissioner later denied Ms. Morgan’s request for a hearing before the entire claims commission. Ms. Morgan has appealed.

7 The State based the latter assertion on what it called the “step in the dark” rule, i.e., that stepping into an unfamiliar dark area constitutes the proximate cause of injuries sustained by falling down stairs hidden in the darkness. Eaton v. McLain, 891 S.W.2d 587, 594 (Tenn. 1994); Goodman v. Memphis Park Comm’n, 851 S.W.2d 165, 171 (Tenn. Ct. App. 1992).

[*9]

8 We construe this finding to be that Ms. Zegilla’s fault exceeded the fault of the State, if any. The claims commissioner stated later in its order that “the sole proximate cause of Ms. Zegilla’s death was her own actions.”

II.

THE STANDARD OF REVIEW

The standards for reviewing summary judgments on appeal are well-settled. [HN1] Summary judgments are proper in virtually any civil case that can be resolved on the basis of legal issues alone. Fruge v. Doe, 952 S.W.2d 408, 410 (Tenn. 1997); Byrd v. Hall, 847 S.W.2d 208, 210 (Tenn. 1993); Pendleton v. Mills, 73 S.W.3d 115, 121 (Tenn. Ct. App. 2001). They are not, however, appropriate when genuine disputes regarding material facts exist. Tenn. R. Civ. P. 56.04. Thus, a summary judgment should be granted only when the undisputed facts, and the inferences reasonably drawn from the undisputed facts, support one conclusion – that the party seeking the summary judgment is entitled to a judgment as a matter of law. Pero’s Steak & Spaghetti House v. Lee, 90 S.W.3d 614, 620 (Tenn. 2002); [*10] Webber v. State Farm Mut. Auto. Ins. Co., 49 S.W.3d 265, 269 (Tenn. 2001).

[HN2] The party seeking a summary judgment bears the burden of demonstrating that no genuine dispute of material fact exists and that it is entitled to a judgment as a matter of law. Godfrey v. Ruiz, 90 S.W.3d 692, 695 (Tenn. 2002); Shadrick v. Coker, 963 S.W.2d 726, 731 (Tenn. 1998). To be entitled to a judgment as a matter of law, the moving party must either affirmatively negate an essential element of the non-moving party’s claim or establish an affirmative defense that conclusively defeats the non-moving party’s claim. Byrd v. Hall, 847 S.W.2d at 215 n. 5; Cherry v. Williams, 36 S.W.3d 78, 82-83 (Tenn. Ct. App. 2000).

[HN3] Once the moving party demonstrates that it has satisfied Tenn. R. Civ. P. 56′s requirements, the non-moving party must demonstrate how these requirements have not been satisfied. Bain v. Wells, 936 S.W.2d 618, 622 (Tenn. 1997). Mere conclusory generalizations will not suffice. Cawood v. Davis, 680 S.W.2d 795, 796-97 (Tenn. Ct. App. 1984). The non-moving party must convince the [*11] trial court that there are sufficient factual disputes to warrant a trial (1) by pointing to evidence either overlooked or ignored by the moving party that creates a factual dispute, (2) by rehabilitating evidence challenged by the moving party, (3) by producing additional evidence that creates a material factual dispute, or (4) by submitting an affidavit in accordance with Tenn. R. Civ. P. 56.07 requesting additional time for discovery. McCarley v. West Quality Food Serv., 960 S.W.2d 585, 588 (Tenn. 1998); Byrd v. Hall, 847 S.W.2d at 215 n. 6. A non-moving party who fails to carry its burden faces summary dismissal of the challenged claim because, as our courts have repeatedly observed, the “failure of proof concerning an essential element of the cause of action necessarily renders all other facts immaterial.” Alexander v. Memphis Individual Practice Ass’n, 870 S.W.2d 278, 280 (Tenn. 1993).

[HN4] A summary judgment is not appropriate when a case’s determinative facts are in dispute. However, for a question of fact to exist, reasonable minds must be able to differ over whether some alleged occurrence or event did or did not happen. Conatser v. Clarksville Coca-Cola Bottling Co., 920 S.W.2d 646, 647 (Tenn. 1995); [*12] Harrison v. Southern Ry. Co., 31 Tenn. App. 377, 387, 215 S.W.2d 31, 35 (1948). If reasonable minds could justifiably reach different conclusions based on the evidence at hand, then a genuine question of fact exists. Louis Dreyfus Corp. v. Austin Co., 868 S.W.2d 649, 656 (Tenn. Ct. App. 1993). If, on the other hand, the evidence and the inferences to be reasonably drawn from the evidence would permit a reasonable person to reach only one conclusion, then there are no material factual disputes and the question can be disposed of as a matter of law. Godfrey v. Ruiz, 90 S.W.3d at 695; Seavers v. Methodist Med. Ctr., 9 S.W.3d 86, 91 (Tenn. 1999); Beaudreau v. General Motors Acceptance Corp., 118 S.W.3d 700, 703 (Tenn. Ct. App. 2003).

[HN5] Summary judgments enjoy no presumption of correctness on appeal. BellSouth Advertising & Publ’g Co. v. Johnson, 100 S.W.3d 202, 205 (Tenn. 2003); Scott v. Ashland Healthcare Ctr., Inc., 49 S.W.3d 281, 285 (Tenn. 2001). Accordingly, appellate courts must make a fresh determination that the requirements of Tenn. R. Civ. P. 56 have been satisfied. [*13] Hunter v. Brown, 955 S.W.2d 49, 50-51 (Tenn. 1997). We must consider the evidence in the light most favorable to the non-moving party, and we must resolve all inferences in the non-moving party’s favor. Godfrey v. Ruiz, 90 S.W.3d at 695; Doe v. HCA Health Servs., Inc., 46 S.W.3d 191, 196 (Tenn. 2001). When reviewing the evidence, we must determine first whether factual disputes exist. If a factual dispute exists, we must then determine whether the fact is material to the claim or defense upon which the summary judgment is predicated and whether the disputed fact creates a genuine issue for trial. Byrd v. Hall, 847 S.W.2d at 214; Rutherford v. Polar Tank Trailer, Inc., 978 S.W.2d 102, 104 (Tenn. Ct. App. 1998).

III.

THE APPLICATION OF TENN. CODE ANN. § 70-7-102

The State’s defense predicated on Tenn. Code Ann. § 70-7-102 figures prominently in this appeal even though the claims commissioner expressly declined to base his decision on this defense. ⁹ For her part, Ms. Morgan asserts that the commissioner erred by “failing and refusing” [*14] to rule on this defense. While the State does not specifically assert that the commissioner erred by not addressing this defense, ¹⁰ it asserts that it did not owe a duty to Ms. Zegilla by virtue of Tenn. Code Ann. § 70- 7-102. Accordingly, we have decided to address the applicability of Tenn. Code Ann. § 70-7-102 to this case head on.

9 The commissioner’s cryptic rulings regarding Tenn. Code Ann. § 70-7-102 are not easy to reconcile. He stated:

The Commission renders its ruling without considering the applicability of the state Recreational Use Immunity Statute. The individuals involved in this incident were using the State property for recreation, thus the Recreational Use Statute applies.

As for gross negligence, if the facts involved the Recreational Use statute alone, in absence of the other three factors discussed heretofore, then this claim should probably proceed to trial. Although the Commission believes there was not any gross negligence, it does not base its conclusion on the Recreational Use Immunity statute.

Because the commissioner stated twice that he was not basing his decision on Tenn. Code Ann. § 70-7-102, we will take him at his word.

[*15]

10 The State could have raised this issue pursuant to Tenn. R. App. P. 13(a).

A.

At common law, property owners could be held liable for injuries to persons who were using their property, with or without their permission, for recreational purposes. Beginning in the 1950s, state legislatures began to enact statutes to limit property owners’ liability when persons were using their property for recreational purposes. ¹¹ The Tennessee General Assembly enacted one of these statutes in 1963. ¹² As originally enacted, the statute was applicable only to private landowners and excluded from its coverage the “willful or malicious failure to guard or warn against a dangerous condition, use, structure or activity.”

11 James C. Becker, Landowner or Occupier Liability for Personal Injuries and Recreational Use Statutes: How Effective Is the Protection?, 24 Ind. L. Rev. 1587, 1587-88 (1991).

12 Act of Mar. 15, 1963, ch. 177, 1963 Tenn. Pub. Acts 784, codified at Tenn. Code Ann. §§ 70-7-101, -105 (1995).

[*16] In 1987, the Tennessee General Assembly amended the recreational use statute in two significant ways that are directly applicable to this case. First, it amended the statute to explicitly apply to real property owned by governmental entities. ¹³ Second, it broadened the exemption to cover “gross negligence, willful or wanton conduct.” ¹⁴

13 Act of May 7, 1987, ch. 448, § 8, 1987 Tenn. Pub. Acts 897, 899, codified at Tenn. Code Ann. § 70-7-101(2)(B).

14 Act of May 7, 1987, ch. 448, § 5, 1987 Tenn. Pub. Acts 897, 898, codified at Tenn. Code Ann. § 70-7-104(1).

The operation of the recreational use statutes is straightforward. Tenn. Code Ann. § 70-7-102 [HN6] is an affirmative defense available to persons who fit within the definition of “landowner” in Tenn. Code Ann. § 70-7-101(2). Parent v. State, 991 S.W.2d 240, 242 (Tenn. 1999); Bishop v. Beckner, 109 S.W.3d 725, 728 (Tenn. Ct. App. 2002). [*17] Landowners may assert a Tenn. Code Ann. § 70-7-102 defense if they prove that the injured person was engaged in a recreational activity ¹⁵ at the time of the injury. Plaintiffs may defeat this affirmative defense in essentially three ways: (1) prove that the defendant is not a “landowner,” (2) prove that the injured party was not engaged in a recreational activity, or (3) prove that the landowner’s conduct fits within one of the three exceptions in Tenn. Code Ann. § 70-7-104. The exceptions in Tenn. Code Ann. § 70-7-104 do not create new independent causes of action against the landowner. Rather, they enable a plaintiff to pursue its negligence claim by negating a landowner’s Tenn. Code Ann. § 70-7-102 defense. Parent v. State, 991 S.W.2d at 242-43.

15 The applicable recreational activities are identified in Tenn. Code Ann. §§ 70-7-102, -103.

[HN7] Applying Tenn. Code Ann. §§ 70-7-101 [*18] , -105 to a particular case requires a three-step analysis. First, the court must determine whether the party asserting the Tenn. Code Ann. § 70-7-102 defense is a landowner. Second, the court must determine whether the activity in which the injured party was engaged at the time of the injury is a recreational activity. Third, the court must determine whether any of the exceptions in Tenn. Code Ann. § 70-7-104 are applicable to the case. See Parent v. State, 991 S.W.2d at 243. If the activity is recreational and no Tenn. Code Ann. § 70-7-104 exceptions apply, the landowner is shielded from liability by Tenn. Code Ann. § 70-7-102. If, however, the activity is recreational, but one of the exceptions applies, the landowner may be liable.

B.

Based on the undisputed facts, there can be no dispute (1) that the State, as a governmental entity, is a “landowner” under Tenn. Code Ann. § 70-7-101(2)(B), (2) that Ms. Zegilla was engaged in a recreational activity because she was “hiking” or “sightseeing” when she fell to her death, [*19] and (3) that the land on which Ms. Zegilla was killed was not exempt from coverage of the statute. ¹⁶ Thus, the only remaining question with regard to the application of the recreational use statute is whether one of Tenn. Code Ann. § 70-7-104′s exceptions applies to this case. Ms. Morgan insists that the exception for gross negligence in Tenn. Code Ann. § 70-7-104(1) applies.

16 Ms. Morgan argued before the claims commissioner that improvements in state natural areas and parks were somehow exempt from Tenn. Code Ann. §§ 70-7-101, -105. However, both the Tennessee Supreme Court and this court have recognized that [HN8] the recreational use statute may apply to state parks and wildlife management areas. Parent v. State, 991 S.W.2d at 241; Rewcastle v. State, 2002 Tenn. App. LEXIS 943, No. E2002-00506-COA-R3-CV, 2002 WL 31926848, at *1 (Tenn. Ct. App. Dec. 31, 2002) (No Tenn. R. App. P. 11 application filed).

[HN9] Gross negligence [*20] is negligent conduct reflecting a reckless disregard for the safety of others. Davidson v. Power Bd., 686 S.W.2d 581, 586 (Tenn. Ct. App. 1984); Odum v. Haynes, 494 S.W.2d 795, 807 (Tenn. Ct. App. 1972). It does not require a particular state of mind as long as it creates an extremely unjustified risk to others. 1 DAN B. DOBBS, THE LAW OF TORTS § 147, at 351 (2001). It differs from ordinary negligence only in degree, not in kind. W. PAGE KEETON, PROSSER & KEETON ON THE LAW OF TORTS § 34, at 212 (5th ed. 1984). Thus, gross negligence is a negligent act or failure to act that reflects more than lack of ordinary care (simple negligence) but less than intentional misconduct. Inter-City Trucking Co. v. Daniels, 181 Tenn. 126, 129-30, 178 S.W.2d 756, 757 (1944); Bennett v. Woodard, 60 Tenn. App. 20, 31-32, 444 S.W.2d 89, 94 (1969).

[HN10] Determining whether particular conduct rises to the level of gross negligence is ordinarily a question of fact. 3 STUART M. SPEISER ET AL., THE AMERICAN LAW OF TORTS § 10:05, at 368 (1986) (“SPEISER”); see also Adams v. Roark, 686 S.W.2d 73, 76 (Tenn. 1985) (gross negligence [*21] determined from the facts alleged in the complaint). However, it may be decided as a matter of law when the material facts are not in dispute and when these facts, and the conclusions reasonably drawn from them, would permit a reasonable person to reach only one conclusion. Leatherwood v. Wadley, 121 S.W.3d 682, ___, 2003 WL 327517, at *8-9 (Tenn. Ct. App. 2003) (affirming summary judgment dismissing gross negligence claim); Buckner v. Varner, 793 S.W.2d 939, 941 (Tenn. Ct. App. 1990) (affirming summary judgment dismissing gross negligence claim); Fellows v. Sexton, 46 Tenn. App. 274, 282, 327 S.W.2d 391, 394 (1959) (granting a judgment notwithstanding the verdict on a gross negligence claim).

We find no evidence in this record upon which a reasonable person would conclude that the State was grossly negligent with regard to the construction or maintenance of the Colditz Cove State Natural Area. The State had a statutory obligation to maintain this area in a pristine, natural condition. Erecting warning signs, installing lighting along the trails, fencing the entire area, or installing guard rails, barriers, or other sorts of buffers, [*22] while perhaps appropriate at Dollywood, would have been entirely unwarranted and unnecessary at a natural area such as Colditz Cove. Accordingly, we have determined that the record, as a matter of law, supports the claims commissioner’s conclusion that “there was not any gross negligence.” ¹⁷ The State was simply not acting recklessly with disregard of the safety of persons entering the natural area.

17 Ms. Morgan asserts in her brief that “the State of Tennessee knew that at Northrop [sic] Falls . . . there was a cliff that eroded into a commonly used path which suddenly dropped at a ninety degree angle approximately one hundred feet and that it posed a deadly, dangerous condition.” This is the only assertion in her papers that approaches an allegation of gross negligence. We have searched the record for substantiation of this claim and have found none. There is no evidence that any of the trails in Colditz Cove had dangerously eroded on July 26, 1997. There is no evidence that the State had actual or constructive notice of any dangerous erosion along any of the trails in the natural area. There is likewise no evidence that either Ms. Zegilla or Mr. King fell to their deaths at a spot on the trail that had eroded.

[*23] Because the State was not grossly negligent, it was entitled to assert a defense predicated on Tenn. Code Ann. § 70-7-102. Therefore, we have concluded, based on the undisputed facts, that the recreational use statute shields the State from liability for Ms. Zegilla’s death and that the State was entitled to a summary judgment dismissing her claims on this ground alone.

IV.

THE STATE’S LIABILITY UNDER TENN. CODE ANN. § 9-8-307(a)(1)(C)

Despite our conclusion that the State has established an affirmative defense under Tenn. Code Ann. § 70-7-102 as a matter of law, we will also address Ms. Morgan’s assertion that the claims commissioner erred by concluding that she had failed to demonstrate that she would be able to prove that the State was liable for her daughter’s death under Tenn. Code Ann. § 9-8-307(a)(1)(C). We have concluded that the undisputed facts also support the commissioner’s conclusion that the State was entitled to a judgment as a matter of law because Ms. Morgan had not demonstrated that she would be able to prove the essential elements of her claim.

[*24] [HN11] The State is not the insurer of the safety of persons on its property. Byrd v. State, 905 S.W.2d 195, 197 (Tenn. Ct. App. 1995). It is, however, liable to these persons to the same extent that private owners and occupiers of land are liable, Sanders v. State, 783 S.W.2d 948, 951 (Tenn. Ct. App. 1989), because Tenn. Code Ann. § 9-8-307(a)(1)(C) has imposed this common-law duty on the State. Parent v. State, 991 S.W.2d at 242. Tenn. Code Ann. § 9-8-307(a)(1)(C) provides that the State may be held monetarily liable for

Negligently created or maintained dangerous conditions on state controlled real property. The claimant under this subsection must establish the foreseeability of the risks and notice given to the proper state officials at a time sufficiently prior to the injury for the state to have taken appropriate measures.

Based on this statute, the State, like a private landowner, has a duty to exercise reasonable care under the circumstances to prevent foreseeable injuries to persons on the premises. Eaton v. McLain, 891 S.W.2d at 593-94. This duty is [*25] grounded on the foreseeability of the risk involved. To recover, a claimant must prove that the injury was a reasonably foreseeable probability. Dobson v. State, 23 S.W.3d 324, 331 (Tenn. Ct. App. 1999).

Tenn. Code Ann. § 9-8-307(a)(1)(C) required Ms. Morgan to prove that Ms. Zegilla was injured in a manner that was reasonably foreseeable and that the State had actual or constructive notice of the dangerous condition that caused Ms. Zegilla’s death in time to take “appropriate measures.” The claims commissioner properly concluded that she failed on both counts.

The record contains no factual, legal, or policy basis for concluding that the State should have foreseen that intoxicated persons who were unfamiliar with the Colditz Cove State Natural Area would hike down the trail to Northrup Falls in the middle of the night without adequate illumination.

Likewise, the record contains no evidence meeting the standards in Tenn. R. Civ. P. 56.04 and Tenn. R. Civ. P. 56.06 that the improvements to Colditz Cove are either inherently dangerous ¹⁸ or, as we have already pointed out, that the State had actual or constructive notice of any particular [*26] dangerous condition in the natural area that caused Ms. Zegilla’s death.

18 Ms. Morgan’s lawyer asserted in the proceeding below that he had consulted an architect who “felt” that the Colditz Cove State Natural Area was “unduly dangerous” and that “the majority of the defects were certainly foreseeable and could have been rectified at a relatively modest capital investment.” While the record contains an unauthenticated letter from this architect summarizing his impressions of the improvements in the natural area, it does not contain the architect’s affidavit or deposition stating these conclusions. The architect’s letter does not meet the requirements in Tenn. R. Civ. P. 56.04 and Tenn. R. Civ. P. 56.06 for evidentiary materials that may be used to support or oppose a motion for summary judgment.

V.

COMPARISON OF MS. ZEGILLA’S FAULT WITH THE STATE’S FAULT

As a final issue, Ms. Morgan asserts that the claims commissioner erred by determining that Ms. Zegilla’s fault exceeded the State’s fault. [*27] She bases her argument on the assertion that the State’s “gross negligence” should somehow count for more in a comparative fault analysis. We have determined that this argument has no merit for two reasons. First, we have already concluded that the undisputed facts demonstrate, as a matter of law, that the State was not grossly negligent. Second, even if the States could somehow be considered grossly negligent, its fault would still be compared with Ms. Zegilla’s fault. Conroy v. City of Dickson, 49 S.W.3d 868, 873 (Tenn. Ct. App. 2001). A majority of the courts in comparative fault jurisdictions permit gross negligence to be compared to ordinary negligence. 3 SPEISER, § 13:25, at 764; 1 ARTHUR BEST, COMPARATIVE NEGLIGENCE LAW & PRACTICE § 4.40[3] (1999); Restatement (Third) of Torts: Apportionment of Fault § 7 cmt. b (1999).

[HN12] The allocation of fault is ordinarily a question of fact for the jury or the trial court sitting without a jury. Brown v. Wal-Mart Discount Cities, 12 S.W.3d 785, 789 (Tenn. 2000). The task of allocating fault should be taken from the fact-finder only when it can be determined beyond question (or alternatively, when reasonable [*28] minds cannot differ) that the plaintiff’s fault is equal to or greater than the defendant’s. Staples v. CBL & Assocs., Inc., 15 S.W.3d 83, 91-92 (Tenn. 2000); Eaton v. McLain, 891 S.W.2d at 589; Kim v. Boucher, 55 S.W.3d 551, 556-57 (Tenn. Ct. App. 2001). The procedural avenues for obtaining a decision that the plaintiff’s fault exceeds the defendant’s as a matter of law are governed by the Tennessee Rules of Civil Procedure. The question may be raised using (1) a motion for summary judgment under Tenn. R. Civ. P. 56, (2) a motion for directed verdict governed by Tenn. R. Civ. P. 50.01, and (3) a post-trial motion for a judgment as a matter of law governed by Tenn. R. Civ. P. 50.02. Henley v. Amacher, 2002 Tenn. App. LEXIS 72, No. M1999-02799-COA-R3-CV, 2002 WL 100402, at *6 (Tenn. Ct. App. Jan. 28, 2002) (No Tenn. R. App. P. 11 application filed).

Ms. Zegilla’s voluntary intoxication on the evening of July 26, 1997 does not relieve her from the responsibility of her own negligence. Kirksey v. Overton Pub, Inc., 739 S.W.2d 230, 235 (Tenn. 1987); Schwartz v. Johnson, 152 Tenn. 586, 592, 280 S.W. 32, 33 (1926). [*29] She was required to use reasonable care under the circumstances, and her conduct must be measured against the conduct of an ordinary, reasonable person rather than an ordinary and reasonable intoxicated person. Louisville & Nashville R.R. v. Hall, 5 Tenn. Civ. App. 491, 502 (1915). Accordingly, if her conduct while intoxicated was a proximate cause of her death, it may be compared with the fault of the other parties whose fault was also a proximate cause. Worley v. State, 1995 Tenn. App. LEXIS 755, No. 02A01-9312-BC-00267, 1995 WL 702792, at *6 (Tenn. Ct. App. Nov. 28, 1995) (No Tenn. R. App. P. 11 application filed).

It cannot be reasonably disputed that Ms. Zegilla was intoxicated when she arrived at Colditz Cove State Natural Area after midnight on July 26, 1997. Even though she had never visited the natural area before, she decided to venture into a wooded area down an unfamiliar, rough foot path in the dark. After one of her companions fell to his death, she continued to walk around in the darkness even though she must have known that danger was close at hand. As tragic as her death is, the only conclusion that reasonable persons can draw from these facts is that her fault [*30] far exceeded any fault that may reasonably be attributed to the State. Accordingly, the claims commissioner properly concluded the State was not liable to Ms. Zegilla’s estate because her fault exceeded any fault that could be attributed to the State.

VI.

We affirm the order dismissing the Tenn. Code Ann. § 9-8-307(a)(1)(C) claim of Ms. Zegilla’s estate against the State and remand the case to the Tennessee Claims Commission for whatever further proceedings may be required. We tax the costs of this appeal to Evelean Morgan for which execution, if necessary, may issue.

City Parks Department sued for injuries of an eight-year-old girl hit by a flying bat at a baseball game field trip.

Sweeney v. City of Bettendorf, 762 N.W.2d 873; 2009 Iowa Sup. LEXIS 26

State: Supreme Court of Iowa

Plaintiff: Tara Sweeney, Individually, and by Cynthia Sweeney, Her Mother and Next Friend

Defendant: City of Bettendorf and Bettendorf Parks and Recreation

Plaintiff Claims: Negligence

Defendant Defenses: Release (Permission Slip), No duty owed,

Holding: Split, the permission slip was not a release however there triable issues to the defense of duty owed

Year: 2009

The city recreation department would take kids on field trips to see minor-league baseball games in other cities. The plaintiff was an eight-year-old girl who loved baseball and her mother. The minor went on several of these field trips in the past. Her mother signed the permission slip and she off went the trip.

In the past, the participants had sat behind home plate which was protected by netting from flying objects. This time the kids were taken to bleachers along the third baseline. They were told they had to sit there and could not move.

During the game, a player lost his grip on the bat which sailed down the third baseline hitting the girl. The minor had turned to talk to her friend when she was struck. No adults were around at the time.

The plaintiffs sued for negligent. The defendant filed a motion for summary judgment citing a permission slip the mother had signed as a release and that the plaintiff had not shown a breach of duty owed to the injured minor.

The plaintiff’s opposed the motion for summary judgment arguing:

The plaintiffs further argued that even if the permission slip amounted to a valid release, it was fatally flawed because it purported to release only the Department and not the City. Finally, plaintiffs asserted even if the permission slip amounted to an anticipatory release of future claims based on acts or omissions of negligence, statutory and common law public policy prevents a parent from waiving such claims on behalf of a minor child.

The trial court granted the motion for summary judgment based on the permission slip no evidence of a breach of duty. The plaintiff’s appealed.

Summary of the case

The court reviewed several procedural issues and then looked into releases under Iowa law. The court found the permission slip was deficient in many ways.

…the permission slip contains no clear and unequivocal language that would notify a casual reader that by signing the document, a parent would be waiving all claims relating to future acts or omissions of negligence by the City. The language at issue here refers only to “accidents” generally and contains nothing specifically indicating that a parent would be waiving potential claims for the City’s negligence.

Based on the language in the permission slip the court found it could not enforce the release because it was not a release.

Next the court looked at whether being hit by a bat at a baseball game was an inherent risk of being a spectator at a baseball game. In Iowa this is called the inherent risk doctrine. (This doctrine is very similar to a secondary assumption of risk argument.) What created a difference in this issue, is the issue of whether a flying bat is an inherent risk, is a defense of the baseball team/promoter/owner or field rather than a city recreation department field trip.

In the majority of cases, spectators sitting outside protective netting at baseball stadiums have been unable to recover from owners or operators for injuries related to errant bats and balls on the ground that such injuries were an “inherent risk” of attending the game.

Regardless of whether the approach is characterized as involving inherent risk or a limited duty, courts applying the doctrine have held that the owner or operator of a baseball stadium is not liable for injury to spectators from flying bats and balls if the owner or operator provided screened seating sufficient for spectators who may be reasonably anticipated to desire such protection and if the most dangerous areas of the stands, ordinarily the area behind home plate, were so protected.

Because the inherent risk was not one of a field trip, the court found differently than if the defense was argued by the owner of the field. The issue was not one of attending a sporting event invited by the event, but supervision of a minor child by a recreation department.

A negligent supervision case is fundamentally different than a case involving premises liability. The eight-year-old child in this case made no choice, but instead sat where she was told by the Department. The plaintiffs further claim that there was inadequate adult supervision where the child was seated. The alleged negligence in this case does not relate to the instrumentality of the injury, but instead focuses on the proper care and supervision of children in an admittedly risky environment.

As a negligent supervision case, the recreation department owed a different type and a higher degree of care to the minor.

Viewed as a negligent supervision case, the City had a duty to act reasonably, under all the facts and circumstances, to protect the children’s safety at the ball park. The gist of the plaintiffs’ claim is that a substantial cause of the injury was the supervisors’ decision to allow the children, who cannot be expected to be vigilant at all times during a baseball game, to be seated in what a jury could conclude was an unreasonably hazardous location behind third base instead of behind the safety of protective netting.

Add to this the change in sitting and the restrictions the adults placed on where the minors could sit and the court found there was a clear issue as to liability.

The third issue reviewed by the court was whether the recreation department failed to provide an adequate level of care to the minor. Here the court agreed with the recreation department. Not because the level of care was sufficient, but because the plaintiff could not prove the level of care was inadequate.

There was a dissent in this case, which argued that the risk of being hit by a bat was an inherent risk of attending a baseball game and that the permission slip was a valid release.

The case was then sent back for trial on the negligence claims of the plaintiff.

So Now What?

What is of interest is the single sentence that argues a release signed by an adult stops the claims of a minor. It was argued by the plaintiff’s as one of the ways the permission slip was invalid. However, the court did not look at the issue in its review and decision in the case.

The court’s review was quite clear on releases. If you do not have the proper language in your release, you are only killing trees. It was a stretch, and a good one, by the recreation department to argue that a document intended to prove the minor could be on a field trip was also a release of claims.

Releases are different legal documents and require specific language.

You also need to remember that defenses that are available to a lawsuit are not just based on the activity, like baseball, but the relationship of the parties to the activity. If the minor child had attended the baseball game on her own or with her parents, the Iowa Inherent Risk Doctrine would have probably prevented a recovery. However, because the duty owed was not from a baseball game to a spectator, but from a recreation department to a minor in its care, the inherent risk defense was not available.

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Mitchell v. City of Dallas, 855 S.W.2d 741; 1993 Tex. App. LEXIS 1714

Saundra Harris Mitchell and Jan P. Mitchell, Individually and as Next Friends of Ashley J. Harris, Appellants v. City of Dallas, Appellee

No. 05-91-01416-CV

COURT OF APPEALS OF TEXAS, FIFTH DISTRICT, DALLAS

855 S.W.2d 741; 1993 Tex. App. LEXIS 1714

March 31, 1993, Filed

PRIOR HISTORY: [**1] On Appeal from the 68th District Court. Dallas County, Texas. Trial Court Cause No. 89-13400-C

COUNSEL: For Appellants: KRISTINA BLINE DIAL.

For Appellee: PATRCIA MEDRANO.

JUDGES: Before Justices Lagarde, Kinkeade, and Barber ¹

1 Justice Will Barber succeeds Justice Jeff Kaplan, a member of the original panel. Justice Barber has reviewed the briefs and record in this case.

OPINION BY: WILL BARBER

OPINION

[*743] OPINION

Opinion By Justice Barber

This is a premises liability case. Saundra Harris Mitchell and Jan P. Mitchell sued the City of Dallas for damages sustained by their minor son when he fell from his bicycle at a municipal park. The City moved for summary judgment. The trial court rendered judgment in favor of the City. We reverse and remand.

FACTUAL BACKGROUND

Ashley Harris suffered serious injuries when he fell from his bicycle into a creek bed at Hamilton Park. The park is owned [*744] and maintained by the City of Dallas. The accident occurred at a part of the creek where there is a fifteen to twenty-five foot drop-off. This condition was created by a gabion wall constructed by the City for erosion control. [**2] The wall consists of rocks wired together. Ashley fell over the edge of the drop-off onto the rocks below.

The Mitchells allege that the City was negligent and grossly negligent in the construction and maintenance of the gabion wall. They also allege that the City failed to warn park users of the steep drop-off and failed to construct a fence or other barrier around this dangerous area.

ISSUES ON APPEAL

The Mitchells attack the trial court’s summary judgment on two broad grounds. First, they contend that this case is governed by common-law principles because the establishment and maintenance of public parks are proprietary functions. Alternatively, the Mitchells argue that their claims against the City are within the waiver provisions of governmental immunity under the Texas Tort Claims Act. They assert that fact issues exist concerning gross negligence in the construction and maintenance of the gabion wall and the City’s negligent failure to warn of or correct this dangerous condition.

LIABILITY UNDER COMMON LAW

In their fourth point of error, the Mitchells contend that the Texas Tort Claims Act does not apply to this case. Rather, the Mitchells argue that the City [**3] is liable under common-law principles because the establishment and maintenance of public parks are proprietary functions.

Under common law, the establishment and maintenance of public parks were deemed proprietary functions. See Dancer v. City of Houston, 384 S.W.2d 340, 342 (Tex. 1964); City of Waco v. Branch, 117 Tex. 394, 5 S.W.2d 498, 499 (1928). These common-law classifications have been redefined under the Texas Tort Claims Act. [HN1] Section 101.0215 of the Act now provides that the operation of parks and zoos is a governmental function. See TEX. CIV. PRAC. & REM. CODE ANN. § 101.0215(a)(13) (Vernon Supp. 1993).

The Mitchells argue that section 101.0215(a) does not reclassify all actions taken by a city regarding public parks. We refuse to adopt such a restrictive interpretation of the statute. To the contrary, the legislature specifically provided that [HN2] the proprietary functions of a municipality do not include those governmental activities listed in section 101.0215(a). See TEX. CIV. PRAC. & REM. CODE ANN. § 101.0215(c) (Vernon Supp. 1993).

We conclude that the claims against the City made the basis of this suit involve governmental functions. [**4] The Mitchells do not have any common-law cause of action against the City. We overrule the fourth point of error.

LIABILITY UNDER THE TEXAS TORT CLAIMS ACT

The Mitchells next contend that the trial court erred in granting summary Judgment because they stated a cause of action within the waiver provisions of governmental immunity under the Texas Tort Claims Act. They allege that the City is not immune from liability for negligent construction and maintenance of the gabion wall along the creek bank. See, e.g., City of Watauga v. Taylor, 752 S.W.2d 199, 202 (Tex. App.–Fort Worth 1988, no writ); Stanford v. State Dep’t of Highways & Pub. Transp., 635 S.W.2d 581, 582 (Tex. App.–Dallas 1982, writ ref’d n.r.e.).

The City argues that these allegations involve the design, upgrading, and placement of an erosion control deuce. The City contends that it is immune from liability because these activities involve discretionary functions. See, e.g., City of El Paso v. Ayoub, 787 S.W.2d 553, 554 (Tex. App.–El Paso 1990, writ denied); Tarrant County Water Control & Improvement Dist. No. 1 v. Crossland, 781 S.W.2d 427, 433 (Tex. App.–Fort Worth 1989, writ denied). [**5]

1. Governmental Immunity

[HN3] A municipality performing a governmental function is afforded sovereign immunity [*745] unless immunity has been waived under the Texas Tort Claims Act. See TEX. CIV. PRAC. & REM. CODE ANN. §§ 101.001-.109 (Vernon 1986 & Supp. 1993). A governmental unit is liable for personal injuries proximately caused “by a condition or use of tangible personal or real property if the governmental unit would, were it a private person, be liable to the claimant according to Texas law.” TEX. CIV. PRAC. & REM. CODE ANN. § 101.021 (Vernon 1986).

2. Discretionary Functions

The Texas Tort Claims Act creates certain exceptions to the waiver of governmental immunity. [HN4] Section 101.056 provides that the waiver provisions of the Act do not apply to claims based on:

(1) the failure of a governmental unit to perform an act that the unit is not required by law to perform; or

(2) a governmental unit’s decision not to perform an act or on its failure to make a decision on the performance or nonperformance of an act if the law leaves the performance or nonperformance of the act to the discretion of the governmental unit.

TEX. CIV. PRAC. & REM. CODE [**6] ANN. § 101.056 (Vernon 1986); see generally Lee M. Larkin, Comment, The “Policy Decision” Exemption of the Texas Tort Claims Act: State v. Terrell, 32 BAYLOR L. REV. 403 (1980) [hereinafter Larkin]. ²

2 The Larkin comment and several cases cited in this opinion involve the interpretation of the original Tort Claims Act contained in the Revised Civil Statutes. See TEX. REV. CIV. STAT. ANN. art. 6252-19 (Vernon 1970) (repealed 1985). The codification of the prior statute in the Civil Practice and Remedies Code did not effect any substantive change, and the language of the current version of the Texas Tort Claims Act is virtually identical to the prior statute. See TEX. CIV. PRAC. & REM. CODE ANN. § 1.001 (Vernon Supp. 1993).

[HN5] The discretionary function exception to the waiver of sovereign immunity is designed to avoid judicial review of governmental policy decisions. State v. Terrell, 588 S.W.2d 784, 787 (Tex. 1979); McKinney v. City of Gainesville, 814 S.W.2d 862, 866 (Tex. [**7] App.–Fort Worth 1991, no writ). Thus, a governmental entity is immune from liability if an injury results from the formulation of policy. However, a governmental unit is not immune if an injury is caused by the negligent implementation of that policy. See Terrell, 588 S.W.2d at 787-88; Christilles v. Southwest Tex. State Univ., 639 S.W.2d 38, 42 (Tex. App.–Austin 1982, writ ref’d n.r.e.); Larkin at 409. This distinction is often stated in terms of actions taken at the planning or policy-making level, which are immune, and actions taken at the subordinate or operational level, which are not immune. See McKinney, 814 S.W.2d at 866; Crossland, 781 S.W.2d at 433; Larkin at 410.

Design decisions made by the City are discretionary and therefore immune from liability. See Crossland, 781 S.W.2d at 433; Taylor, 752 S.W.2d at 202; Stanford, 635 S.W.2d at 582. Maintenance activities undertaken at the operational level are not discretionary functions and are not immune from liability. See City of Round Rock v. Smith, 687 S.W.2d 300, 303 (Tex. 1985); Taylor, 752 S.W.2d at 202; Hamric v. Kansas City S. Ry., 718 S.W.2d 916, 919 (Tex. App.–Beaumont [**8] 1986, writ ref’d n.r.e.). There is some conflict in the case law regarding the characterization of construction activities. Compare Smith, 687 S.W.2d at 303, and Ayoub, 787 S.W.2d at 554 (indicating that city is not immune from liability for construction and maintenance activities), with Taylor, 752 S.W.2d at 202 (indicating that planning and construction are immune activities).

We hold that construction activities are not discretionary functions. These activities involve the implementation of planning or policy-making decisions at the operational level. Therefore, the City is not immune from liability for claims based on the negligent construction and maintenance of the gabion wall.

STANDARD OF CARE

We next determine the standard of care owed by the City to park users. The City argues that it only owes the duty owed to a trespasser. The Mitchells contend that the City owes the same duty as [*746] owed to an invitee because they paid for use of the premises through the payment of taxes and because of the nature of the premises defect.

1. Statutes

[HN6] Section 101.022 of the Texas Tort Claims Act provides:

(a) If a claim arises from a premises [**9] defect, the governmental unit owes to the claimant only the duty that a private person owes to a licensee on private property, unless the claimant pays for the use of the premises.

(b) The limitation of duty in this section does not apply to the duty to warn of special defects such as excavations or obstructions on highways, roads, or streets.

TEX. CIV. PRAC. & REM. CODE ANN. § 101.022 (Vernon 1986) (emphasis added).

Section 75.002 of the Civil Practice and Remedies Code provides:

If an owner, lessee, or occupant of real property other than agricultural land gives permission to another to enter the premises for recreation, the owner, lessee, or occupant, by giving the permission, does not:

. . . .

(2) owe to the person to whom permission is granted a greater degree of care than is owed to a trespasser on the premises.

TEX. CIV PRAC. & REM. CODE ANN. § 75.002 (Vernon 1986) (emphasis added).

These two statutes are in apparent conflict in cases where the owner or occupier of the premises is a governmental unit that gives implied permission to persons to enter the property for recreational purposes. We must resolve this conflict by examining the [**10] case law and implementing well-settled rules of statutory construction.

2. Case Law

One court has held that the statutory predecessor to section 75.002, article 1b of the Revised Civil Statutes, should apply only if the injured party was a trespasser. It held the statute did not apply in a governmental tort liability context by simply stating that the persons who used the premises were not trespassers. Trinity River Auth. v. Williams, 659 S.W.2d 714, 720 (Tex. App.–Beaumont 1983), aff’d in part a rev’d in part on other grounds, 689 S.W.2d 883 (Tex. 1985); see TEX. REV. CIV. STAT. ANN. art. 1b, § l (Vernon 1969). It should be noted that the statute did not declare that recreational users are trespassers but merely provided that the duty owed to such users is the same as that owed to trespassers. Another court has held that section 75.002 did apply to governmental units. Noting that section 101.022(a) provides that the governmental entity owes “only the duty that a private person owes to a licensee on private property,” the court held that the section 75.002 duty standard applied to the State. Crossland, 781 S.W.2d at 547. Although the Crossland court [**11] purported to rely on section 101.022(a) in reaching its result, it ignored the fact that such provision states the governmental unit owes the duty that a private person owes to a licensee.

3. Statutory Analysis

We are not persuaded by the reasoning of either Williams or Crossland. Instead, we look to the legislative history of sections 75.002 and 101.022(a).

Article 1b of the Texas Revised Civil Statutes preceded section 75.002. See Act of May 29, 1965, 59th Leg., R.S., ch. 677, 1965 Tex. Gen. Laws 1551, 1551-52. Until this statute was codified in the Texas Civil Practice and Remedies Code, it was contained in the “General Provisions” of Title 1. See TEX. REV. CIV. STAT. ANN. art. 1b, § 1 (Vernon 1969). The statutory predecessor to section 101.022(a) of the Texas Tort Claims Act was article 6252-19, section 18(b) of the Texas Revised Civil Statutes. Article 6252-19 was first enacted in 1969, four years after the enactment of article 1b. See Texas Tort Claims Act, 61st Leg., R.S., ch. 292, 1969 Tex. Gen. Laws 874, 878-79; TEX. REV. CIV. STAT. ANN. art. 6252-19, § 18(b) (Vernon 1970).

We conclude that section 75.002 and its predecessor, article [**12] 1b, were intended [*747] to be laws of general application. Section 101.022(a) and its predecessor, section 18(b) of article 6252-19, were specific laws applicable to governmental owners and occupiers of real property. [HN7] When two statutes conflict, the specific controls over the general. Sam Bassett Lumber Co. v. City of Houston, 145 Tex. 492, 496, 198 S.W.2d 879, 881 (1947); see also TEX. GOV’T CODE ANN. § 311.026(b) (Vernon 1988); Carr v. Hunt, 651 S.W.2d 875, 882 (Tex. App.–Dallas 1983, writ ref’d n.r.e). Further, a more recent statutory enactment prevails over an earlier one. TEX. GOV’T CODE ANN. § 311.025(a) (Vernon 1988); State v. McKinney, 803 S.W.2d 374, 376 (Tex. App.–Houston [14th Dist.] 1990, no pet.); Commercial Standard Fire & Marine Co. v. Commissioner of Ins., 429 S.W.2d 930, 933 (Tex. Civ. App.–Austin 1968, no writ).

4. Conclusion

We hold that section 101.022(a) controls over section 75.002. The duty owed by the City to park users under the Texas Tort Claims Act is the duty that a private person owes to a licensee. [HN8] An owner or occupier of land must refrain from injuring a licensee by willful, wanton, or gross negligence. An [**13] owner or occupant must also warn a licensee of any dangerous condition, or make the condition reasonably safe, if the land owner has actual knowledge of the dangerous condition and the licensee does not. State v. Tennison, 509 S.W.2d 560, 562 (Tex. 1974).

EXCEPTIONS TO THE STANDARD OF CARE UNDER THE TORT CLAIMS ACT

The Mitchells argue that the duty owed by the City in this case is the same duty owed to an invitee. The Mitchells contend that the Texas Tort Claims Act creates a higher standard of care because: (1) they paid for use of the park through the payment of taxes; and (2) the steep drop-off created by the gabion wall constituted a special defect.

1. Taxpayer Status

The Mitchells first contend that their son was an invitee because they paid for use of the park through the payment of city taxes.

A similar argument was recently rejected by the San Antonio Court of Appeals in Garcia v. State, 817 S.W.2d 741 (Tex. App.–San Antonio 1991, writ denied). The plaintiff in Garcia sued the State of Texas under the Texas Tort Claims Act for damages sustained in a highway accident. He claimed invitee status because he paid for use of the highway through [**14] driver’s license fees and fuel taxes. The court held that the payment of fees and taxes does not confer invitee status for several reasons: (1) invitee status requires payment of a specific fee for entry onto and use of public premises; (2) the plaintiff’s contention would result in a lesser duty owed to nonresident users who did not pay taxes; and (3) the legislature did not intend such a broad grant of invitee status under section 101.022(a) of the Tort Claims Act. See Garcia, 817 S.W.2d at 743.

We adopt the reasoning of Garcia. We hold that [HN9] section 101.022(a) of the Tort Claims Act does not confer invitee status on park users based on the payment of taxes alone.

2. Special Defect

The Mitchells next contend that the City owed a higher standard of care because the steep drop-off created by the gabion wall constituted a special defect.

[HN10] A governmental unit has a duty to warn of or protect against special defects. TEX. CIV. PRAC. & REM. CODE ANN. § 101.022(b) (Vernon 1986); see City of Houston v. Jean, 517 S.W.2d 596, 599 (Tex. Civ. App.–Houston [1st Dist.] 1974, writ ref’d n.r.e.). The duty to warn of a special defect is the same duty owed to an invitee. [**15] County of Harris v. Eaton, 573 S.W.2d 177, 180 (Tex. 1978). A special defect must be distinguished by some unusual quality outside the ordinary course of events. Crossland, 781 S.W.2d at 433; Sutton v. State Highway Dep’t, 549 S.W.2d 59, 61 (Tex. Civ. App.–Waco 1977, writ ref’d [*748] n.r.e.). A condition is a special defect only if it presents an unexpected and unusual danger to ordinary users of a roadway. State Dep’t of Highways & Pub. Transp. v. Kitchen, 1993 Tex. LEXIS 26, 36 Tex. Sup. Ct. J. 678, 679 (March 24, 1993); State Dep’t of Highways & Pub. Transp. v. Payne, 838 S.W.2d 235, 238-39 n.3 (Tex. 1992) (op. on mot. for reh’g). A longstanding, routine, or permanent condition is not a special defect. Crossland, 781 S.W.2d at 433.

The Mitchells do not argue that the condition created by the gabion wall was unusual or outside the ordinary course of events. The summary judgment evidence establishes that the drop-off near the creek bank was longstanding and permanent. We hold that the premises defect made the basis of this claim was not a special defect.

MOTION FOR SUMMARY JUDGMENT

We now consider the summary judgment rendered in favor [**16] of the City in light of our holding that (1) construction and maintenance activities are not discretionary functions, and (2) the duty owed to park users is the same duty owed to a licensee.

1. Standard of Review

[HN11] Summary judgment may be rendered only if the record shows that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. TEX. R. Civ. P 166a(c); Rodriguez v. Naylor Indus., Inc., 763 S.W.2d 411, 413 (Tex. 1989). A summary judgment seeks to eliminate patently unmeritorious claims and defenses, not to deny a party its right to a full hearing on the merits of any real fact issue. Gulbenkian v. Penn, 151 Tex. 412, 416, 252 S.W.2d 929, 931 (1952).

[HN12] A defendant who moves for summary judgment must show that the plaintiff has no cause of action. Citizens First Nat’l Bank v. Cinco Exploration Co., 540 S.W.2d 292, 294 (Tex. 1976). A defendant may meet this burden by either (1) disproving at least one essential element of each theory of recovery, Anderson v. Snider, 808 S.W.2d 54, 55 (Tex. 1991), or (2) conclusively proving all elements of an affirmative defense. Swilley v. Hughes, 488 S.W.2d 64, 67 (Tex. [**17] 1972).

[HN13] In reviewing a summary judgment, we must take all evidence favorable to the nonmovant as true in deciding whether a fact issue exists. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex. 1985). We must indulge every reasonable inference and resolve any doubt in favor of the nonmovant. Id.

2. Application of Law to the Facts

a. Negligent Construction and Maintenance

The Mitchells allege that the City was negligent and grossly negligent in the construction and maintenance of the gabion wall. They specifically pleaded that the City was negligent in constructing the wall for erosion control “in such a manner so as to result in a dangerous condition by creating a 15 to 25 foot steep cliff drop-off . . . when the City should have built the creek bank in a non-cliff manner.” The Mitchells also alleged that “construction and maintenance of a 15 to 25 foot drop-off behind a public restroom in a public park without a fence and Warning signs demonstrates a lack of due care and conscious indifference to the health, safety, and welfare of those affected by it.” ³

3 Gross negligence is defined as “such an entire want of care as to establish that the act or omission was the result of actual conscious indifference to the rights, safety, or welfare of the person affected.” TEX. CIV. PRAC. & REM. CODE ANN. § 41.001(5) (Vernon Supp. 1993). Absent a special exception, the allegation of “lack of due care and conscious indifference” contained in the Mitchell’s petition is sufficient to plead the duty owed by the City to park users.

[**18] The City characterizes these allegations as defective design claims. It correctly notes that design claims are discretionary functions for which governmental entities are immune from liability. However, the City has failed to conclusively demonstrate that design defect is the sole basis for the Mitchells’ claim.

[*749] The City argues it is entitled to judgment as a matter of law because there is no specific pleading or proof that the premises were unreasonably dangerous or that it breached any duty owed to park users. The City misconstrues the burden of proof in a summary judgment proceeding. It is incumbent upon a defendant as movant to conclusively negate at least one essential element of the plaintiff’s case. Citizens First Nat’l Bank, 540 S.W.2d at 294. [HN14] A plaintiff as nonmovant is not required to establish his right to prevail. Ramirez v. Bagley Produce Co., 614 S.W.2d 582, 584 (Tex. Civ. App.–Corpus Christi 1981, no writ). A nonmovant has no duty or burden whatsoever in a summary judgment case until the movant establishes its right to a judgment as a matter of law. Bankers Commercial Life Ins. Co. v. Scott, 631 S.W.2d 228, 232 (Tex. App.–Tyler 1982, [**19] writ ref’d n.r.e.).

The City presented no evidence of the original design of the gabion wall. The City did not show that the gabion wall was constructed and maintained pursuant to its original design and that the design of the wall was not otherwise modified. The City, therefore, failed to show that the Mitchells’ allegations were defective design claims and, thereby, failed to meet its burden of negating an essential element of the Mitchells’ case.

The Mitchells alleged that Ashley was injured when he fell from his bicycle down a steep cliff drop-off. The area was unfenced and located adjacent to the sidewalk. The Mitchells contend that this constitutes a dangerous condition. Ashley’s deposition testimony reflects that there was erosion of the ground underneath the sidewalk where he fell. ⁴ The City did not conclusively negate these allegations. The pleadings and deposition testimony are sufficient to create a fact issue regarding negligent and grossly negligent maintenance and construction.

4 Ashley’s testimony on this point is not very clear, but it is susceptible to the interpretation advanced by the Mitchells. In a summary judgment case, all inferences and doubts must he resolved in favor of the nonmovant. See Nixon, 690 S.W.2d at 548-49.

[**20] b. Failure to Warn or Make Safe

The Mitchells alleged that the City failed to warn of a dangerous condition in the area of the restrooms and sidewalk adjacent to the creek. They also claimed that the City failed to construct a fence or other barrier in the area or otherwise correct the dangerous condition.

The City relies on affidavits from three park officials to show that it lacked actual knowledge of any dangerous condition. The affidavits state that the City had no prior notice of a defect, dangerous condition, or similar accident. However, lack of notice from third parties does not conclusively negate actual knowledge. The fact that the owner or occupier of a premises created a condition that posed an unreasonable risk of harm may support an inference of knowledge. The question of knowledge is a fact issue. See Keetch v. Kroger Co., 845 S.W.2d 262, 36 Tex. Sup. Ct. J. 273, 275 (December 2, 1992). An affidavit from a civil engineer states the drop-off should have been fenced off from the public area of the park. The engineer’s affidavit concludes that in failing to fence off or otherwise obstruct public movement into the area, “the City has failed to protect the [**21] public or give adequate warning to the public of a defect which created a dangerous condition.”

The City argues that Ashley must be charged with knowledge of any dangerous condition because the alleged premises defect was open and obvious. [HN15] The duty to warn or make safe applies when the licensee lacks actual knowledge. Payne v. State, 838 S.W.2d at 237; Tennison, 509 S.W.2d at 562. The City contends that the Mitchells have conceded that Ashley had actual knowledge of the condition of the premises. The response to the summary judgment motion recites that Ashley was aware of the existence of the creek. The response recites that Ashley, “being unaware . . . that the ground had eroded under the sidewalk next to this drop-off . . . fell over the edge and onto the rocks below.” [*750] The Mitchells never stated that Ashley was aware of the drop-off next to the sidewalk. The record does not conclusively establish that Ashley had actual knowledge of a dangerous condition. The lack of knowledge is an element of appellant’s claim that when disputed should be submitted to the fact finder. See Payne, 838 S.W.2d at 241.

SUMMARY

The establishment and maintenance [**22] of municipal parks are governmental functions under the Texas Tort Claims Act. The City is immune from liability for any claims involving the design of the gabion wall at Hamilton Park. However, the City is not immune from liability for claims based on the construction or maintenance of the wall. The duty owed by the City to park users is the same duty owed by a private person to a licensee.

We hold that the trial court erred in granting summary judgment. There are genuine fact issues concerning (1) gross negligence ⁵ in the construction and maintenance of the gabion wall, and (2) the failure to warn of or correct a dangerous condition. ⁶ We sustain the Mitchell’s second and third points of error.

5 The duty owed to a licensees being a duty to refrain from injuring by willful, wanton, or gross negligence.

6 The licensor must also warn of a dangerous condition, or make it reasonably safe, if the licensor has actual knowledge of the condition and the licensee does not have such knowledge.

We reverse [**23] the trial court’s judgment and remand this case for further proceedings consistent with this opinion.

WILL BARBER

JUSTICE

Morgan v. State of Tennessee, 2004 Tenn. App. LEXIS 62

Evelean Morgan v. State of Tennessee

No. M2002-02496-COA-R3-CV

COURT OF APPEALS OF TENNESSEE, AT NASHVILLE

2004 Tenn. App. LEXIS 62

November 3, 2003, Session

January 27, 2004, Filed

PRIOR HISTORY: [*1] Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Claims Commission Affirmed. Appeal from the Tennessee Claims Commission No. 99000125 W. R. Baker, Commissioner.

DISPOSITION: Affirmed and remanded.

COUNSEL: David H. Dunaway, LaFollette, Tennessee, for the appellant, Evelean Morgan.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; and Christopher Michael Fancher, Assistant Attorney General, for the appellee, State of Tennessee.

JUDGES: WILLIAM C. KOCH, JR., P.J., M.S., delivered the opinion of the court, in which WILLIAM B. CAIN and PATRICIA J. COTTRELL, JJ., joined.

OPINION BY: WILLIAM C. KOCH, JR., P.J., M.S.

OPINION

This appeal involves a fatal accident at the Colditz Cove State Natural Area in Fentress County. The mother of a woman who fell to her death from the bluff surrounding Northrup Falls filed a claim with the Tennessee Claims Commission. The State of Tennessee denied liability based on (1) the recreational use defense in Tenn. Code Ann. § 70-7-102 (1995), (2) its lack of actual or constructive notice of a dangerous condition, and (3) its assertion that the decedent’s fault exceeded its own. The commissioner granted the State’s motion for summary judgment. [*2] While he did not rely on the statutory recreational use defense, the commissioner determined that the State had no notice of a dangerous condition at the natural area, it was not reasonably foreseeable that intoxicated persons who were unfamiliar with the natural area would hike into the area of the falls in the middle of the night, and the decedent’s actions were the sole proximate cause of her death. The decedent’s mother has appealed. We have determined that the commissioner properly granted the summary judgment because, as a matter of law, (1) the State established a defense under Tenn. Code Ann. § 70-7-102, (2) the decedent’s estate presented no evidence that the State had actual or constructive notice of an allegedly dangerous condition on the trail in the natural area, and (3) the decedent’s fault far exceeded whatever fault could be attributed to the State.

I.

Rochelle Copeland Zegilla and her two small children were living with her mother in mid-1997 following a separation from her husband. On Saturday evening, July 26, 1997, she told her mother that she was “going to go out for awhile,” and then she drove to the Top of the Mountain Lounge in [*3] Jamestown, Tennessee. After the lounge closed at midnight, Ms. Zegilla and four companions ¹ decided to drive to a nearby VFW club. When they arrived at the club, however, they discovered that it had closed earlier than usual. After a brief discussion in the club parking lot, the group decided to continue their drinking and talking in the parking lot of the Colditz Cove State Natural Area.

1 Ms. Zegilla’s companions at the Top of the Mountain Lounge were Chris Smith, Loretta Johnson, Edward Raines, and Larry King.

The Colditz Cove State Natural Area is a 165-acre Class II natural-scientific area in Fentress County owned by the State of Tennessee. It is heavily wooded and contains the 75-foot Northrup Falls and a scenic gorge with interesting rock formations. ² The area has been designated by statute as “worthy of perpetual preservation,” ³ and accordingly, improvements to the area are limited to foot trails, foot bridges, and primitive campgrounds ⁴ and “facilities as may be reasonably necessary . . .for [*4] the safe and proper management and protection of the area.” ⁵ In addition to a parking lot, the State had erected several signs and a gate and had constructed a 1.5 mile foot trail along the bluff overlooking Northrup Falls, as well as a scenic overlook. The State had not installed lights in the parking lot or along the foot trail.

2 Tenn. Code Ann. § 11-14-108(b)(2)(F) (Supp. 2003).

3 Tenn. Code Ann. § 11-14-105(2) (1999).

4 Tenn. Code Ann. § 11-14-106(a)(1)(B) (1999).

5 Tenn. Code Ann. § 11-14-106(a)(2).

All of the group except Mr. Raines had been drinking throughout the evening, and they continued drinking in the parking lot because Messrs. Smith and King had brought along a cooler of beer purchased earlier in the evening at Midway Qwick Stop. After talking for several minutes, the group decided to walk down the foot trail toward Northrup Falls in the pitch dark even though [*5] three of them, including Ms. Zegilla, had never been to Colditz Cove before. The only illumination they had was Mr. King’s flashlight.

When the group reached a fork in the trail, Mr. Raines and Ms. Johnson decided to walk no further and sat near a trash container to talk and drink. Ms. Zegilla and Messrs. Smith and King kept walking along the trail toward Northrup Falls. After they stopped to drink and talk, Mr. King asked Mr. Smith to shine the flashlight into the bushes to enable him to find a place to urinate. Mr. King walked into the bushes and, on his return, he fell over the bluff into the gorge below.

Mr. Smith yelled, “Larry has fallen off,” and called to Mr. Raines for assistance. Mr. Raines made his way down the trail to Mr. Smith and Ms. Zegilla. After they all called out to Mr. King to no avail, Mr. Raines decided to go for help and took the flashlight to help make his way back up the foot path to the parking lot. Ms. Zegilla and Mr. Smith, now joined by Ms. Johnson, continued to call for Mr. King. Mr. Smith decided to start a fire with his shirt to make some light. After his shirt went out, Ms. Zegilla somehow fell over the bluff. The rescue workers who arrived at the [*6] scene at approximately 1:30 a.m. on Sunday, July 27, 1997, found the lifeless bodies of both Mr. King and Ms. Zegilla in the water at the bottom of the falls. An autopsy revealed that Ms. Zegilla’s blood alcohol level was .18%.

On July 23, 1998, Evelean Morgan, Ms. Zegilla’s mother and her personal representative, filed a claim for $ 500,000 with the Tennessee Claims Commission asserting that the State had violated Tenn. Code Ann. § 9-8-307(a)(1)(C) (Supp. 2003) by negligently creating or maintaining a dangerous condition at Colditz Cove State Natural Area. ⁶ The State moved to dismiss the claim on the ground that it was shielded from liability by the recreational use statute [Tenn. Code Ann. §§ 70-7-101, -105 (1995)]. After the claims commissioner denied its motion, the State filed an answer denying Ms. Morgan’s negligence claims. The State asserted, as affirmative defenses, (1) that Tenn. Code Ann. § 70-7-102 shielded it from liability, (2) that it had no actual or constructive notice of a dangerous condition at Colditz Cove State Natural Area and that it was not reasonably foreseeable that intoxicated [*7] persons who were unfamiliar with the natural area would hike into the area of the falls in the middle of the night, and (3) that Ms. Zegilla’s own negligence “contributed in excess of 50% to the cause of her death.”

6 Ms. Morgan also filed a civil damage action in the Circuit Court for Fentress County against Ms. Johnson, Messrs. Smith and Raines, and the estate of Mr. King.

In February 2002, following lengthy and somewhat contentious discovery, the State moved for a summary judgment on two grounds – Tenn. Code Ann. § 70-7-102 and its assertion that Ms. Zegilla’s “negligence was equal to or greater than [the] negligence of the State, if any.” ⁷ In April 2002, Ms. Morgan responded by asserting that the State was not entitled to a judgment on either ground because the State was grossly negligent and because its negligence was greater than Ms. Zegilla’s. The claims commissioner held a hearing on the State’s motion for summary judgment after conducting his own personal inspection of [*8] the Colditz Cove State Natural Area without the lawyers or parties present. On June 5, 2002, the commissioner filed an order granting the State’s motion for summary judgment. While the commissioner declined to base his decision on Tenn. Code Ann. § 70-7-102, he determined that the undisputed evidence demonstrated as a matter of law that Ms. Morgan had not shown that she could prove notice and foreseeability as required by Tenn. Code Ann. § 9-8-307(a)(1)(C) and that Ms. Zegilla was “preponderantly negligent in her own death.” ⁸ The commissioner later denied Ms. Morgan’s request for a hearing before the entire claims commission. Ms. Morgan has appealed.

7 The State based the latter assertion on what it called the “step in the dark” rule, i.e., that stepping into an unfamiliar dark area constitutes the proximate cause of injuries sustained by falling down stairs hidden in the darkness. Eaton v. McLain, 891 S.W.2d 587, 594 (Tenn. 1994); Goodman v. Memphis Park Comm’n, 851 S.W.2d 165, 171 (Tenn. Ct. App. 1992).

[*9]

8 We construe this finding to be that Ms. Zegilla’s fault exceeded the fault of the State, if any. The claims commissioner stated later in its order that “the sole proximate cause of Ms. Zegilla’s death was her own actions.”

II.

THE STANDARD OF REVIEW

The standards for reviewing summary judgments on appeal are well-settled. [HN1] Summary judgments are proper in virtually any civil case that can be resolved on the basis of legal issues alone. Fruge v. Doe, 952 S.W.2d 408, 410 (Tenn. 1997); Byrd v. Hall, 847 S.W.2d 208, 210 (Tenn. 1993); Pendleton v. Mills, 73 S.W.3d 115, 121 (Tenn. Ct. App. 2001). They are not, however, appropriate when genuine disputes regarding material facts exist. Tenn. R. Civ. P. 56.04. Thus, a summary judgment should be granted only when the undisputed facts, and the inferences reasonably drawn from the undisputed facts, support one conclusion – that the party seeking the summary judgment is entitled to a judgment as a matter of law. Pero’s Steak & Spaghetti House v. Lee, 90 S.W.3d 614, 620 (Tenn. 2002); [*10] Webber v. State Farm Mut. Auto. Ins. Co., 49 S.W.3d 265, 269 (Tenn. 2001).

[HN2] The party seeking a summary judgment bears the burden of demonstrating that no genuine dispute of material fact exists and that it is entitled to a judgment as a matter of law. Godfrey v. Ruiz, 90 S.W.3d 692, 695 (Tenn. 2002); Shadrick v. Coker, 963 S.W.2d 726, 731 (Tenn. 1998). To be entitled to a judgment as a matter of law, the moving party must either affirmatively negate an essential element of the non-moving party’s claim or establish an affirmative defense that conclusively defeats the non-moving party’s claim. Byrd v. Hall, 847 S.W.2d at 215 n. 5; Cherry v. Williams, 36 S.W.3d 78, 82-83 (Tenn. Ct. App. 2000).

[HN3] Once the moving party demonstrates that it has satisfied Tenn. R. Civ. P. 56’s requirements, the non-moving party must demonstrate how these requirements have not been satisfied. Bain v. Wells, 936 S.W.2d 618, 622 (Tenn. 1997). Mere conclusory generalizations will not suffice. Cawood v. Davis, 680 S.W.2d 795, 796-97 (Tenn. Ct. App. 1984). The non-moving party must convince the [*11] trial court that there are sufficient factual disputes to warrant a trial (1) by pointing to evidence either overlooked or ignored by the moving party that creates a factual dispute, (2) by rehabilitating evidence challenged by the moving party, (3) by producing additional evidence that creates a material factual dispute, or (4) by submitting an affidavit in accordance with Tenn. R. Civ. P. 56.07 requesting additional time for discovery. McCarley v. West Quality Food Serv., 960 S.W.2d 585, 588 (Tenn. 1998); Byrd v. Hall, 847 S.W.2d at 215 n. 6. A non-moving party who fails to carry its burden faces summary dismissal of the challenged claim because, as our courts have repeatedly observed, the “failure of proof concerning an essential element of the cause of action necessarily renders all other facts immaterial.” Alexander v. Memphis Individual Practice Ass’n, 870 S.W.2d 278, 280 (Tenn. 1993).

[HN4] A summary judgment is not appropriate when a case’s determinative facts are in dispute. However, for a question of fact to exist, reasonable minds must be able to differ over whether some alleged occurrence or event did or did not happen. Conatser v. Clarksville Coca-Cola Bottling Co., 920 S.W.2d 646, 647 (Tenn. 1995); [*12] Harrison v. Southern Ry. Co., 31 Tenn. App. 377, 387, 215 S.W.2d 31, 35 (1948). If reasonable minds could justifiably reach different conclusions based on the evidence at hand, then a genuine question of fact exists. Louis Dreyfus Corp. v. Austin Co., 868 S.W.2d 649, 656 (Tenn. Ct. App. 1993). If, on the other hand, the evidence and the inferences to be reasonably drawn from the evidence would permit a reasonable person to reach only one conclusion, then there are no material factual disputes and the question can be disposed of as a matter of law. Godfrey v. Ruiz, 90 S.W.3d at 695; Seavers v. Methodist Med. Ctr., 9 S.W.3d 86, 91 (Tenn. 1999); Beaudreau v. General Motors Acceptance Corp., 118 S.W.3d 700, 703 (Tenn. Ct. App. 2003).

[HN5] Summary judgments enjoy no presumption of correctness on appeal. BellSouth Advertising & Publ’g Co. v. Johnson, 100 S.W.3d 202, 205 (Tenn. 2003); Scott v. Ashland Healthcare Ctr., Inc., 49 S.W.3d 281, 285 (Tenn. 2001). Accordingly, appellate courts must make a fresh determination that the requirements of Tenn. R. Civ. P. 56 have been satisfied. [*13] Hunter v. Brown, 955 S.W.2d 49, 50-51 (Tenn. 1997). We must consider the evidence in the light most favorable to the non-moving party, and we must resolve all inferences in the non-moving party’s favor. Godfrey v. Ruiz, 90 S.W.3d at 695; Doe v. HCA Health Servs., Inc., 46 S.W.3d 191, 196 (Tenn. 2001). When reviewing the evidence, we must determine first whether factual disputes exist. If a factual dispute exists, we must then determine whether the fact is material to the claim or defense upon which the summary judgment is predicated and whether the disputed fact creates a genuine issue for trial. Byrd v. Hall, 847 S.W.2d at 214; Rutherford v. Polar Tank Trailer, Inc., 978 S.W.2d 102, 104 (Tenn. Ct. App. 1998).

III.

THE APPLICATION OF TENN. CODE ANN. § 70-7-102

The State’s defense predicated on Tenn. Code Ann. § 70-7-102 figures prominently in this appeal even though the claims commissioner expressly declined to base his decision on this defense. ⁹ For her part, Ms. Morgan asserts that the commissioner erred by “failing and refusing” [*14] to rule on this defense. While the State does not specifically assert that the commissioner erred by not addressing this defense, ¹⁰ it asserts that it did not owe a duty to Ms. Zegilla by virtue of Tenn. Code Ann. § 70- 7-102. Accordingly, we have decided to address the applicability of Tenn. Code Ann. § 70-7-102 to this case head on.

9 The commissioner’s cryptic rulings regarding Tenn. Code Ann. § 70-7-102 are not easy to reconcile. He stated:

The Commission renders its ruling without considering the applicability of the state Recreational Use Immunity Statute. The individuals involved in this incident were using the State property for recreation, thus the Recreational Use Statute applies.

As for gross negligence, if the facts involved the Recreational Use statute alone, in absence of the other three factors discussed heretofore, then this claim should probably proceed to trial. Although the Commission believes there was not any gross negligence, it does not base its conclusion on the Recreational Use Immunity statute.

Because the commissioner stated twice that he was not basing his decision on Tenn. Code Ann. § 70-7-102, we will take him at his word.

[*15]

10 The State could have raised this issue pursuant to Tenn. R. App. P. 13(a).

A.

At common law, property owners could be held liable for injuries to persons who were using their property, with or without their permission, for recreational purposes. Beginning in the 1950s, state legislatures began to enact statutes to limit property owners’ liability when persons were using their property for recreational purposes. ¹¹ The Tennessee General Assembly enacted one of these statutes in 1963. ¹² As originally enacted, the statute was applicable only to private landowners and excluded from its coverage the “willful or malicious failure to guard or warn against a dangerous condition, use, structure or activity.”

11 James C. Becker, Landowner or Occupier Liability for Personal Injuries and Recreational Use Statutes: How Effective Is the Protection?, 24 Ind. L. Rev. 1587, 1587-88 (1991).

12 Act of Mar. 15, 1963, ch. 177, 1963 Tenn. Pub. Acts 784, codified at Tenn. Code Ann. §§ 70-7-101, -105 (1995).

[*16] In 1987, the Tennessee General Assembly amended the recreational use statute in two significant ways that are directly applicable to this case. First, it amended the statute to explicitly apply to real property owned by governmental entities. ¹³ Second, it broadened the exemption to cover “gross negligence, willful or wanton conduct.” ¹⁴

13 Act of May 7, 1987, ch. 448, § 8, 1987 Tenn. Pub. Acts 897, 899, codified at Tenn. Code Ann. § 70-7-101(2)(B).

14 Act of May 7, 1987, ch. 448, § 5, 1987 Tenn. Pub. Acts 897, 898, codified at Tenn. Code Ann. § 70-7-104(1).

The operation of the recreational use statutes is straightforward. Tenn. Code Ann. § 70-7-102 [HN6] is an affirmative defense available to persons who fit within the definition of “landowner” in Tenn. Code Ann. § 70-7-101(2). Parent v. State, 991 S.W.2d 240, 242 (Tenn. 1999); Bishop v. Beckner, 109 S.W.3d 725, 728 (Tenn. Ct. App. 2002). [*17] Landowners may assert a Tenn. Code Ann. § 70-7-102 defense if they prove that the injured person was engaged in a recreational activity ¹⁵ at the time of the injury. Plaintiffs may defeat this affirmative defense in essentially three ways: (1) prove that the defendant is not a “landowner,” (2) prove that the injured party was not engaged in a recreational activity, or (3) prove that the landowner’s conduct fits within one of the three exceptions in Tenn. Code Ann. § 70-7-104. The exceptions in Tenn. Code Ann. § 70-7-104 do not create new independent causes of action against the landowner. Rather, they enable a plaintiff to pursue its negligence claim by negating a landowner’s Tenn. Code Ann. § 70-7-102 defense. Parent v. State, 991 S.W.2d at 242-43.

15 The applicable recreational activities are identified in Tenn. Code Ann. §§ 70-7-102, -103.

[HN7] Applying Tenn. Code Ann. §§ 70-7-101 [*18] , -105 to a particular case requires a three-step analysis. First, the court must determine whether the party asserting the Tenn. Code Ann. § 70-7-102 defense is a landowner. Second, the court must determine whether the activity in which the injured party was engaged at the time of the injury is a recreational activity. Third, the court must determine whether any of the exceptions in Tenn. Code Ann. § 70-7-104 are applicable to the case. See Parent v. State, 991 S.W.2d at 243. If the activity is recreational and no Tenn. Code Ann. § 70-7-104 exceptions apply, the landowner is shielded from liability by Tenn. Code Ann. § 70-7-102. If, however, the activity is recreational, but one of the exceptions applies, the landowner may be liable.

B.

Based on the undisputed facts, there can be no dispute (1) that the State, as a governmental entity, is a “landowner” under Tenn. Code Ann. § 70-7-101(2)(B), (2) that Ms. Zegilla was engaged in a recreational activity because she was “hiking” or “sightseeing” when she fell to her death, [*19] and (3) that the land on which Ms. Zegilla was killed was not exempt from coverage of the statute. ¹⁶ Thus, the only remaining question with regard to the application of the recreational use statute is whether one of Tenn. Code Ann. § 70-7-104’s exceptions applies to this case. Ms. Morgan insists that the exception for gross negligence in Tenn. Code Ann. § 70-7-104(1) applies.

16 Ms. Morgan argued before the claims commissioner that improvements in state natural areas and parks were somehow exempt from Tenn. Code Ann. §§ 70-7-101, -105. However, both the Tennessee Supreme Court and this court have recognized that [HN8] the recreational use statute may apply to state parks and wildlife management areas. Parent v. State, 991 S.W.2d at 241; Rewcastle v. State, 2002 Tenn. App. LEXIS 943, No. E2002-00506-COA-R3-CV, 2002 WL 31926848, at *1 (Tenn. Ct. App. Dec. 31, 2002) (No Tenn. R. App. P. 11 application filed).

[HN9] Gross negligence [*20] is negligent conduct reflecting a reckless disregard for the safety of others. Davidson v. Power Bd., 686 S.W.2d 581, 586 (Tenn. Ct. App. 1984); Odum v. Haynes, 494 S.W.2d 795, 807 (Tenn. Ct. App. 1972). It does not require a particular state of mind as long as it creates an extremely unjustified risk to others. 1 DAN B. DOBBS, THE LAW OF TORTS § 147, at 351 (2001). It differs from ordinary negligence only in degree, not in kind. W. PAGE KEETON, PROSSER & KEETON ON THE LAW OF TORTS § 34, at 212 (5th ed. 1984). Thus, gross negligence is a negligent act or failure to act that reflects more than lack of ordinary care (simple negligence) but less than intentional misconduct. Inter-City Trucking Co. v. Daniels, 181 Tenn. 126, 129-30, 178 S.W.2d 756, 757 (1944); Bennett v. Woodard, 60 Tenn. App. 20, 31-32, 444 S.W.2d 89, 94 (1969).

[HN10] Determining whether particular conduct rises to the level of gross negligence is ordinarily a question of fact. 3 STUART M. SPEISER ET AL., THE AMERICAN LAW OF TORTS § 10:05, at 368 (1986) (“SPEISER”); see also Adams v. Roark, 686 S.W.2d 73, 76 (Tenn. 1985) (gross negligence [*21] determined from the facts alleged in the complaint). However, it may be decided as a matter of law when the material facts are not in dispute and when these facts, and the conclusions reasonably drawn from them, would permit a reasonable person to reach only one conclusion. Leatherwood v. Wadley, 121 S.W.3d 682, ___, 2003 WL 327517, at *8-9 (Tenn. Ct. App. 2003) (affirming summary judgment dismissing gross negligence claim); Buckner v. Varner, 793 S.W.2d 939, 941 (Tenn. Ct. App. 1990) (affirming summary judgment dismissing gross negligence claim); Fellows v. Sexton, 46 Tenn. App. 274, 282, 327 S.W.2d 391, 394 (1959) (granting a judgment notwithstanding the verdict on a gross negligence claim).

We find no evidence in this record upon which a reasonable person would conclude that the State was grossly negligent with regard to the construction or maintenance of the Colditz Cove State Natural Area. The State had a statutory obligation to maintain this area in a pristine, natural condition. Erecting warning signs, installing lighting along the trails, fencing the entire area, or installing guard rails, barriers, or other sorts of buffers, [*22] while perhaps appropriate at Dollywood, would have been entirely unwarranted and unnecessary at a natural area such as Colditz Cove. Accordingly, we have determined that the record, as a matter of law, supports the claims commissioner’s conclusion that “there was not any gross negligence.” ¹⁷ The State was simply not acting recklessly with disregard of the safety of persons entering the natural area.

17 Ms. Morgan asserts in her brief that “the State of Tennessee knew that at Northrop [sic] Falls . . . there was a cliff that eroded into a commonly used path which suddenly dropped at a ninety degree angle approximately one hundred feet and that it posed a deadly, dangerous condition.” This is the only assertion in her papers that approaches an allegation of gross negligence. We have searched the record for substantiation of this claim and have found none. There is no evidence that any of the trails in Colditz Cove had dangerously eroded on July 26, 1997. There is no evidence that the State had actual or constructive notice of any dangerous erosion along any of the trails in the natural area. There is likewise no evidence that either Ms. Zegilla or Mr. King fell to their deaths at a spot on the trail that had eroded.

[*23] Because the State was not grossly negligent, it was entitled to assert a defense predicated on Tenn. Code Ann. § 70-7-102. Therefore, we have concluded, based on the undisputed facts, that the recreational use statute shields the State from liability for Ms. Zegilla’s death and that the State was entitled to a summary judgment dismissing her claims on this ground alone.

IV.

THE STATE’S LIABILITY UNDER TENN. CODE ANN. § 9-8-307(a)(1)(C)

Despite our conclusion that the State has established an affirmative defense under Tenn. Code Ann. § 70-7-102 as a matter of law, we will also address Ms. Morgan’s assertion that the claims commissioner erred by concluding that she had failed to demonstrate that she would be able to prove that the State was liable for her daughter’s death under Tenn. Code Ann. § 9-8-307(a)(1)(C). We have concluded that the undisputed facts also support the commissioner’s conclusion that the State was entitled to a judgment as a matter of law because Ms. Morgan had not demonstrated that she would be able to prove the essential elements of her claim.

[*24] [HN11] The State is not the insurer of the safety of persons on its property. Byrd v. State, 905 S.W.2d 195, 197 (Tenn. Ct. App. 1995). It is, however, liable to these persons to the same extent that private owners and occupiers of land are liable, Sanders v. State, 783 S.W.2d 948, 951 (Tenn. Ct. App. 1989), because Tenn. Code Ann. § 9-8-307(a)(1)(C) has imposed this common-law duty on the State. Parent v. State, 991 S.W.2d at 242. Tenn. Code Ann. § 9-8-307(a)(1)(C) provides that the State may be held monetarily liable for

Negligently created or maintained dangerous conditions on state controlled real property. The claimant under this subsection must establish the foreseeability of the risks and notice given to the proper state officials at a time sufficiently prior to the injury for the state to have taken appropriate measures.

Based on this statute, the State, like a private landowner, has a duty to exercise reasonable care under the circumstances to prevent foreseeable injuries to persons on the premises. Eaton v. McLain, 891 S.W.2d at 593-94. This duty is [*25] grounded on the foreseeability of the risk involved. To recover, a claimant must prove that the injury was a reasonably foreseeable probability. Dobson v. State, 23 S.W.3d 324, 331 (Tenn. Ct. App. 1999).

Tenn. Code Ann. § 9-8-307(a)(1)(C) required Ms. Morgan to prove that Ms. Zegilla was injured in a manner that was reasonably foreseeable and that the State had actual or constructive notice of the dangerous condition that caused Ms. Zegilla’s death in time to take “appropriate measures.” The claims commissioner properly concluded that she failed on both counts.

The record contains no factual, legal, or policy basis for concluding that the State should have foreseen that intoxicated persons who were unfamiliar with the Colditz Cove State Natural Area would hike down the trail to Northrup Falls in the middle of the night without adequate illumination.

Likewise, the record contains no evidence meeting the standards in Tenn. R. Civ. P. 56.04 and Tenn. R. Civ. P. 56.06 that the improvements to Colditz Cove are either inherently dangerous ¹⁸ or, as we have already pointed out, that the State had actual or constructive notice of any particular [*26] dangerous condition in the natural area that caused Ms. Zegilla’s death.

18 Ms. Morgan’s lawyer asserted in the proceeding below that he had consulted an architect who “felt” that the Colditz Cove State Natural Area was “unduly dangerous” and that “the majority of the defects were certainly foreseeable and could have been rectified at a relatively modest capital investment.” While the record contains an unauthenticated letter from this architect summarizing his impressions of the improvements in the natural area, it does not contain the architect’s affidavit or deposition stating these conclusions. The architect’s letter does not meet the requirements in Tenn. R. Civ. P. 56.04 and Tenn. R. Civ. P. 56.06 for evidentiary materials that may be used to support or oppose a motion for summary judgment.

V.

COMPARISON OF MS. ZEGILLA’S FAULT WITH THE STATE’S FAULT

As a final issue, Ms. Morgan asserts that the claims commissioner erred by determining that Ms. Zegilla’s fault exceeded the State’s fault. [*27] She bases her argument on the assertion that the State’s “gross negligence” should somehow count for more in a comparative fault analysis. We have determined that this argument has no merit for two reasons. First, we have already concluded that the undisputed facts demonstrate, as a matter of law, that the State was not grossly negligent. Second, even if the States could somehow be considered grossly negligent, its fault would still be compared with Ms. Zegilla’s fault. Conroy v. City of Dickson, 49 S.W.3d 868, 873 (Tenn. Ct. App. 2001). A majority of the courts in comparative fault jurisdictions permit gross negligence to be compared to ordinary negligence. 3 SPEISER, § 13:25, at 764; 1 ARTHUR BEST, COMPARATIVE NEGLIGENCE LAW & PRACTICE § 4.40[3] (1999); Restatement (Third) of Torts: Apportionment of Fault § 7 cmt. b (1999).

[HN12] The allocation of fault is ordinarily a question of fact for the jury or the trial court sitting without a jury. Brown v. Wal-Mart Discount Cities, 12 S.W.3d 785, 789 (Tenn. 2000). The task of allocating fault should be taken from the fact-finder only when it can be determined beyond question (or alternatively, when reasonable [*28] minds cannot differ) that the plaintiff’s fault is equal to or greater than the defendant’s. Staples v. CBL & Assocs., Inc., 15 S.W.3d 83, 91-92 (Tenn. 2000); Eaton v. McLain, 891 S.W.2d at 589; Kim v. Boucher, 55 S.W.3d 551, 556-57 (Tenn. Ct. App. 2001). The procedural avenues for obtaining a decision that the plaintiff’s fault exceeds the defendant’s as a matter of law are governed by the Tennessee Rules of Civil Procedure. The question may be raised using (1) a motion for summary judgment under Tenn. R. Civ. P. 56, (2) a motion for directed verdict governed by Tenn. R. Civ. P. 50.01, and (3) a post-trial motion for a judgment as a matter of law governed by Tenn. R. Civ. P. 50.02. Henley v. Amacher, 2002 Tenn. App. LEXIS 72, No. M1999-02799-COA-R3-CV, 2002 WL 100402, at *6 (Tenn. Ct. App. Jan. 28, 2002) (No Tenn. R. App. P. 11 application filed).

Ms. Zegilla’s voluntary intoxication on the evening of July 26, 1997 does not relieve her from the responsibility of her own negligence. Kirksey v. Overton Pub, Inc., 739 S.W.2d 230, 235 (Tenn. 1987); Schwartz v. Johnson, 152 Tenn. 586, 592, 280 S.W. 32, 33 (1926). [*29] She was required to use reasonable care under the circumstances, and her conduct must be measured against the conduct of an ordinary, reasonable person rather than an ordinary and reasonable intoxicated person. Louisville & Nashville R.R. v. Hall, 5 Tenn. Civ. App. 491, 502 (1915). Accordingly, if her conduct while intoxicated was a proximate cause of her death, it may be compared with the fault of the other parties whose fault was also a proximate cause. Worley v. State, 1995 Tenn. App. LEXIS 755, No. 02A01-9312-BC-00267, 1995 WL 702792, at *6 (Tenn. Ct. App. Nov. 28, 1995) (No Tenn. R. App. P. 11 application filed).

It cannot be reasonably disputed that Ms. Zegilla was intoxicated when she arrived at Colditz Cove State Natural Area after midnight on July 26, 1997. Even though she had never visited the natural area before, she decided to venture into a wooded area down an unfamiliar, rough foot path in the dark. After one of her companions fell to his death, she continued to walk around in the darkness even though she must have known that danger was close at hand. As tragic as her death is, the only conclusion that reasonable persons can draw from these facts is that her fault [*30] far exceeded any fault that may reasonably be attributed to the State. Accordingly, the claims commissioner properly concluded the State was not liable to Ms. Zegilla’s estate because her fault exceeded any fault that could be attributed to the State.

VI.

We affirm the order dismissing the Tenn. Code Ann. § 9-8-307(a)(1)(C) claim of Ms. Zegilla’s estate against the State and remand the case to the Tennessee Claims Commission for whatever further proceedings may be required. We tax the costs of this appeal to Evelean Morgan for which execution, if necessary, may issue.

Sa v. Red Frog Events, LlC, 979 F. Supp. 2d 767; 2013 U.S. Dist. LEXIS 151355

James Sa, Plaintiff, vs. Red Frog Events, LlC, an Illinois corporation, Defendant.

No. 2:13-cv-10294

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN, SOUTHERN DIVISION

979 F. Supp. 2d 767; 2013 U.S. Dist. LEXIS 151355

October 22, 2013, Decided

October 22, 2013, Filed

CORE TERMS: mud, dive, pit, own negligence, willful, wanton misconduct, obstacle, gross negligence, diving, indemnity, negligence claim, indemnitee, indemnify, negligent acts, indemnification, disclaim, pit head, risk of injury, citation omitted, unambiguous, encouraged, summary judgment, claim arising, recreational activities, reasonable care, encouraging, disclaimer, hazardous, choosing, ladder

COUNSEL: [**1] For James Sa, Plaintiff: Michael J. Behm, Behm and Behm, Flint, MI.

For Red Frog Events, LLC, Defendant: Brian T. McGorisk, Plunkett & Cooney, Flint, MI.

JUDGES: Hon. GERALD E. ROSEN, CHIEF UNITED STATES DISTRICT JUDGE.

OPINION BY: GERALD E. ROSEN

OPINION

[*769] OPINION AND ORDER PARTIALLY GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

I. INTRODUCTION

This action arises out of an unfortunate and tragic accident during a running race organized by Defendant Red Frog Events, resulting in Plaintiff James Sa’s paralysis from his chest down. On January 23, 2013, Plaintiff filed a three-count Complaint, asserting negligence, gross negligence, and willful and wanton misconduct. ¹ Defendant has now moved to dismiss Plaintiff’s Complaint on the grounds that Plaintiff waived his negligence claim and that his two other claims fail to state a claim upon which relief may be granted. ² Having reviewed and considered the parties’ briefs and supporting documents and the entire record of this matter, the Court has determined that the pertinent allegations and legal arguments are sufficiently addressed in these materials and that oral [*770] argument would not assist in the resolution of these motions. Accordingly, the Court will decide Defendant’s [**2] motion “on the briefs.” See L.R. 7.1(f)(2). This Opinion and Order sets forth the Court’s ruling.

1 Michigan courts use “willful” and “wilful” interchangeably. For consistency, this Court uses the former, unless in the context of a direct quote.

2 Though captioned as a “Motion for Summary Judgment,” Defendant’s Motion makes clear that it seeks dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6), or alternatively, pursuant to Rule 56. As discussed in more detail in footnotes 3 and 4, this Court applies Rule 12(b)(6) to this Motion.

II. PERTIENT FACTS

In July 2011, Plaintiff participated in a two-day event known as the “Warrior Dash” in Mt. Morris, Michigan. (Plf’s Compl., Dkt. # 1, at ¶¶ 5, 8). The Warrior Dash is a 5k running race with obstacles, including jumping over fire, wall climbing, and a mud pit. (Id. at ¶ 7). Plaintiff was injured as a result of diving head first into the mud pit. (Id. at ¶¶ 21-22).

Positioned directly across from bleachers and right before the finish line, the mud pit was the last obstacle of the race. (Id. at ¶¶ 13-14). One of Defendant’s employees or agents was stationed near the mud pit with a microphone and loudspeaker, acting as an emcee for the [**3] event. (Id. at ¶ 15). Over the course of the event, this individual continually enticed, encouraged, and specifically told participants to dive into the mud pit. (Id. at ¶¶ 16, 26, 27). It was common knowledge among participants that diving into the mud pit was not only permitted, but encouraged. (Id. at ¶ 17). As an example of this “common knowledge,” bloggers commented about mud diving online. (Id. at ¶ 18). One noted the following:

When I arrived at the Warrior Dash on Saturday morning I found out rather quickly that “mud diving” was rather popular on the last obstacle before the finish line. . . . A good mud dive at this point makes perfect sense since runners are tired from the grueling course yet rejuvenated as they see the last obstacle. I’m sure the spectator attention also gives a little more motivation for participants to bring their best mud dive as well. . . . Hopefully this joy is worth the pain they may have endured to make this happen since my brother-in-law had to go to the hospital after attempting a cannon ball.

(Id.). This same person also posted “sweet pictures of an assortment of some of the best mud dives” and requested that readers “vote” for their favorite. (Id.).

Before [**4] Plaintiff’s race wave began, he witnessed many participants dive into the mud pit, heard the emcee encourage others to dive into the mud pit, and never saw anyone tell participants not to dive into the mud pit. (Id. at ¶¶ 19, 27). Defendant also did not post any signs instructing individuals not to dive into the mud pit. (Id. at ¶ 20). Accordingly, Plaintiff followed the emcee’s encouragement and the lead of other participants and dove into the mud pit, resulting in paralysis from the chest down. (Id. at ¶ 22).

Prior to participating in the Warrior Dash, Plaintiff — as well as all other participants — signed a “Waiver and Release of Claims” (Waiver). (Id. at ¶ 9). The Waiver provides, in no uncertain terms, that Plaintiff “agree[s] not to dive into or enter the mud pit head first.” (Ex. A. to Def’s Br., Dkt. # 4-1, at ¶ 17). ³ Other pertinent language includes:

1. I understand that entering Warrior Dash is a hazardous activity.

2. I understand that Warrior Dash presents extreme obstacles including, but not limited to: fire, mud [*771] pits with barbed wire, cargo climbs, junk cars, and steep hills.

* * *

7. I assume all risks associated with competing in Warrior Dash, including, but not limited [**5] to: falls, contact with other participants, negligent or wanton acts of other participants, completing all obstacles, any defects or conditions of premises, and the effects of weather including high heat and/or humidity, all such risks being known and appreciated by me.

* * *

DISCLAIMER

I understand that Red Frog Events, LLC is committed to conducting its race and activities in a safe manner and holds the safety of participants in high regard. I understand that Red Frog Events, LLC continually strives to reduce such risks and insists that all participants follow safety rules and instructions that are designed to protect the participants’ safety. I also understand, however, that participants . . . registering for the race, programs, and activities must recognize that there is an inherent risk of injury when choosing to participate in recreational activities and programs.

* * *

WAIVER & RELEASE OF ALL CLAIMS; ASSUMPTION OF RISK

I recognize and acknowledge that there are certain risks of physical injury to participants in Warrior Dash, and voluntarily assume the full risk of any and all injuries, damages, or loss, regardless of severity, that I . . . may sustain as a result of said participation. [**6] . . . I assume all risks and hazards incidental to such participation in Warrior Dash, and I hereby waive, release, absolve, indemnify, and agree to hold harmless . . . Red Frog Events, LLC . . . for any claim arising out of an injury to me . . . and from any and all claims, causes of action, obligations, lawsuits, charges, complaints, contracts, controversies, covenants, agreements, promises, damages, costs, expenses, responsibilities, of whatsoever kind, nature, or description, whether direct or indirect, in law or in equity, in contract or tort, or otherwise, whether known or unknown, arising out of or connected with my . . . participation in Warrior Dash.

(Id.) In accepting these terms, Plaintiff checked that he had read and fully understood the Waiver and signed with his own free act and deed. (Id.).

3 Defendant attached a signed copy of the Waiver in support of its Motion. This Court may consider this document without treating Defendant’s Motion as one for summary judgment because it is referred to in Plaintiff’s Complaint and is central to his claim. Weiner v. Klais and Co., Inc., 108 F.3d 86, 89 (6th Cir. 1997).

III. DISCUSSION

A. Applicable Standards

1. Rule 12(b)(6) Standard

In [**7] deciding a motion brought under Rule 12(b)(6), the Court must construe the complaint in the light most favorable to Plaintiffs and accept all well-pled factual allegations as true. League of United Latin Am. Citizens v. Bredesen, 500 F.3d 523, 527 (6th Cir. 2007). To withstand a motion to dismiss, however, a complaint “requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007). The factual allegations in the complaint, accepted as true, “must be enough to raise a right to relief above the speculative level,” and must “state a claim to relief that is plausible on its face.” Id. at 570. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009). “The plausibility of [*772] an inference depends on a host of considerations, including common sense and the strength of competing explanations for defendant’s conduct.” 16630 Southfield Limited P’ship v. Flagstar Bank, F.S.B., 727 F.3d 502, 504 (6th Cir. 2013).

The Sixth [**8] Circuit has emphasized that the “combined effect of Twombly and Iqbal [is to] require [a] plaintiff to have a greater knowledge . . . of factual details in order to draft a ‘plausible complaint.'” New Albany Tractor, Inc. v. Louisville Tractor, Inc., 650 F.3d 1046, 1051 (6th Cir. 2011) (citation omitted). Put another way, complaints must contain “plausible statements as to when, where, in what or by whom,” Center for Bio-Ethical Reform, Inc. v. Napolitano, 648 F.3d 365, 373 (6th Cir. 2011), in order to avoid merely pleading “unadorned, the-defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678.

2. Application of Michigan law

This Court applies Michigan law as enunciated by the Michigan Supreme Court because subject matter jurisdiction in the matter is premised solely on diversity jurisdiction. See, e.g., Corrigan v. U.S. Steel Corp., 478 F.3d 718, 723 (6th Cir. 2007); Garden City Osteopathic Hosp. v. HBE Corp., 55 F.3d 1126, 1130 (6th Cir. 1995). “Where the Michigan Supreme Court has not addressed an issue, [courts] may look to opinions issued by the Michigan appellate courts and should follow their reasoning unless [they] are ‘convinced by other persuasive data that the [**9] highest court of the state would decide otherwise.'” Tooling, Mfg. & Technologies Ass’n v. Hartford Fire Ins. Co., 693 F.3d 665, 670 (6th Cir. 2012) (quoting Ziegler v. IBP Hog Market, Inc., 249 F.3d 509, 517 (6th Cir. 2001)).

B. The Waiver bars Plaintiff’s negligence claim (Count I)

In Michigan, “the validity of a release turns on the intent of the parties. A release must be fairly and knowingly made to be valid. If the language of a release is clear and unambiguous, the intent of the parties is ascertained from the plain and ordinary meaning of the language.” Batshon v. Mar-Que Gen. Contractors, Inc., 463 Mich. 646, 650 n.4, 624 N.W.2d 903 (2001). “The interpretation of [a] release [is] a question of law.” Cole v. Ladbroke Racing Michigan, Inc., 241 Mich. App. 1, 13, 614 N.W.2d 169 (2000).

Michigan law expressly permits “a party to contract against liability or damages caused by its own ordinary negligence.” Skotak v. Vic Tanny Intern., Inc., 203 Mich. App. 616, 617-18, 513 N.W.2d 428 (1994). Plaintiff does not dispute that he signed the Waiver and provides no factual support to avoid the consequences of the Waiver. He does not argue, for example, that (1) he “was “dazed, in shock, or under the influence” when he signed the Waiver; [**10] (2) “the nature of the instrument was misrepresented, or (3) there was other fraudulent or overreaching conduct.” Xu v. Gay, 257 Mich. App. 263, 273, 668 N.W.2d 166 (2003). ⁴ Rather, Plaintiff asserts [*773] that “Red Frog fails to indemnify itself from its own negligent acts” because it “did not use the term ‘negligent’ and/or ‘negligence’ anywhere within the four corners of it’s (sic) Waiver & Release Agreement.” (Plf’s Resp., Dkt. # 8, at 6). For this proposition, Plaintiff begins with a citation to an Eastern District of Michigan case, Buffa v. General Motors Corporation, 131 F. Supp. 478 (E.D. Mich. 1955), finding that “a contract of indemnity which purportedly indemnifies against the consequences of one’s own negligence is subject to strict construction and will not be so construed unless it clearly appears from the language used that it was intended to have that effect.” Id. at 482.

4 In response to Defendant’s Motion, Plaintiff submitted various materials outside the pleadings, including an unsigned and different version of the Waiver, an affidavit from Plaintiff, affidavits from two participants, a press release from Defendant regarding the Warrior Dash, and an excerpt from the above quoted blog picturing [**11] participants’ dives and requesting that readers vote for the best dive. To the unsigned Waiver, the Court notes that while slightly different, the material language at issue is the same — including that Plaintiff agreed to “not dive into or enter the mud pit head first,” that the Warrior Dash is a “hazardous activity,” that he “assum[ed] the full risk of any and all injuries,” and that he agreed to release Defendant from “any and all” claims. Plaintiff’s affidavit also fails to raise any issues challenging the factual circumstances of his signing of the Waiver. Finally, the remaining materials just supplement his Complaint assertions — namely, that Defendant’s agent encouraged participants to dive into the mud pit. Such materials “simply fill[] in the contours and details of the [P]laintiff’s complaint, and add[] nothing new.” Yeary v. Goodwill Indus.-Knoxville, Inc., 107 F.3d 443, 445 (6th Cir. 1997). In short, nothing in these materials provides the Court with any basis for finding that there would be any facts that could be developed through discovery that would provide a factual predicate to support Plaintiff’s negligence cause of action. Accordingly, the Court declines to consider [**12] these materials and therefore evaluates the sufficiency of Plaintiff’s Complaint under Federal Rule of Civil Procedure 12(b)(6).

There is no doubt that Michigan courts have adopted this general proposition, but not in the manner in which Plaintiff suggests. See, e.g., Skinner v. D-M-E Corp., 124 Mich. App. 580, 586, 335 N.W.2d 90 (1983) (“It is universally recognized that a contract which purports to confer an express right to indemnification against the consequences of one’s own negligence is subject to strict construction and will not be so construed unless the contract language clearly evidences that such was the intended effect.”). Instead, Michigan courts hold that “indemnity clauses need not expressly mention the indemnitee’s own acts to provide coverage for them.” Badiee v. Brighton Area Sch., 265 Mich. App. 343, 353, 695 N.W.2d 521 (2005) (citing Sherman v. DeMaria Bldg. Co., Inc., 203 Mich. App. 593, 513 N.W.2d 187 (1994)). As the Sherman court explained:

Michigan courts have discarded the additional rule of construction that indemnity contracts will not be construed to provide indemnification for the indemnitee’s own negligence unless such an intent is expressed clearly and unequivocally in the contract. Instead, broad indemnity [**13] language may be interpreted to protect the indemnitee against its own negligence if this intent can be ascertained from “other language in the contract, surrounding circumstances, or from the purpose sought to be accomplished by the parties.”

Sherman, 203 Mich. App. at 596-97 (citation omitted); see also Chrysler Corp. v. Brencal Contractors, Inc., 146 Mich. App. 766, 771, 381 N.W.2d 814 (1985) (“Earlier cases imposed the additional rule of construction that indemnification contracts will not be construed to indemnify the indemnitee against losses from his own negligent acts unless such an intent is expressed in unequivocal terms. That rule of construction no longer applies.”) (internal citations omitted). Put another way, “although an indemnity provision does not expressly state that the indemnitee will be shielded from its own negligence, such language is not mandatory to provide such indemnification.” Fischbach-Natkin Co. v. Power Process Piping, Inc., 157 Mich. App. 448, 452-53, 403 N.W.2d 569 (1987); Harbenski v. Upper Peninsula Power Co., 118 Mich. App. 440, 454, 325 N.W.2d 785 (1982) (“The [*774] contention that the intent to indemnify an indemnitee against his own negligence must be expressly stated has been rejected.”) (citing Vanden Bosch v. Consumers Power Co., 394 Mich. 428, 230 N.W.2d 271 (1975)).

Plaintiff [**14] contends that Sherman does not so hold, and rather only stands for the narrow proposition that “if there is no unequivocal language in the agreement indemnifying defendant for its own negligent acts then the indemnity language may be interpreted to protect the indemnitee against its own negligence if this intent can be ascertained from other language in the contract, surrounding circumstances, or from the purpose sought to be accomplished by the parties.” (Plf’s Resp., Dkt. # 8, at 8) (citation and internal quotations omitted). For support, Plaintiff argues that the presence of an exclusionary clause in Sherman — excluding indemnification for claims based on the defendant’s sole negligence — “evince[d the] . . . intent to indemnify [defendant] against losses from its own negligence but not from loses caused solely by [defendant].” (Id.) (quoting Sherman, 203 Mich. App. at 598-99). ⁵ Though the Waiver here contains no such clause, Sherman cannot be read as requiring such juxtaposing language to either read in or read out coverage for a party’s own negligence. Instead, Sherman counsels that courts must examine, among other things, the contract’s “other language” in the absence of an [**15] unequivocal statement regarding a party’s own negligence.

5 Sherman also notes that the waiver referenced the “owner’s continuing operations, which indicated that the parties realized their employees would be on the job site at the same time . . . [t]hus, the possibility that an injury or damage could result from [the defendant]‘s negligence was apparent at the time the parties entered the contract.” Sherman, 203 Mich. App. at 599. The Court addresses this language below.

Here, the Waiver’s “other language” “clearly expresses [D]efendant’s intention to disclaim liability for all negligence, including its own.” Skotak, 203 Mich. App. at 619. Michigan law plainly holds that the phrases “‘any’ and ‘all’ and of the phrase ‘any and all’ . . . include[s] one’s own negligence.” Paquin v. Harnischfeger Corp., 113 Mich. App. 43, 50, 317 N.W.2d 279 (1982). This is because “there cannot be any broader classification than the word ‘all.’ In ‘its ordinary and natural meaning, the word “all” leaves no room for exceptions.'” Id. (citation omitted).

In personal injury cases interpreting language nearly identical to the Waiver’s language, Michigan courts find that such phrases disclaim one’s own negligence. Take Skotak [**16] for example. There, the Michigan Court of Appeals addressed the scope of a waiver in a matter alleging negligence — failing to train staff to respond to a heart attack — against a health club after a club member suffered a fatal heart attack while sitting in a steam room. 203 Mich. App. at 617. In construing the waiver to include the defendant’s own negligence, the Skotak court noted that the waiver’s “inclusive language, ‘any and all claims, demands, damages, rights of action, or causes of action, . . . arising out of the Member’s . . . use of the . . . facilities,’ clearly expresses defendant’s intention to disclaim liability for all negligence, including its own.” Id. at 619 (alterations in original). The Skotak court also emphasized the breadth of the word “all,” rejecting the plaintiff’s argument that it covered certain kinds of negligence (slip and fall injuries resulting from use of exercise equipment), but not others (like negligent training and supervision):

[*775] We fail to see how such a line can be drawn. We do not believe that the risk that medical assistance might not be available is somehow less foreseeable than the danger of a slip and fall injury. In any event, there is no [**17] broader classification than the word “all.” In its ordinary and natural meaning, the word “all” leaves no room for exceptions. Therefore, assuming that defendant was negligent in failing adequately to train and supervise its employees, any claim arising out of that negligence would be barred by the release clause the decedent signed.

Id. (internal citation omitted).

Other personal injury cases — of which Defendant features prominently and Plaintiff avoids all together — also interpret similar waiver language to include one’s own negligence. ⁶ See Cole, 241 Mich. App. at 14 (release covering “all risks of any injury that the undersigned may sustain while on the premises . . . clearly expressed defendant’s intention to disclaim liability for all injuries, including those attributable to its own negligence”); Gara v. Woodbridge Tavern, 224 Mich. App. 63, 67, 568 N.W.2d 138 (1997) (“The language whereby the participant agreed to assume ‘any risks inherent in any other activities connected with this event in which I may voluntarily participate’ and to take responsibility for ‘any and all injuries (including death) and accidents which may occur as a result of my participation in this event . . . ‘ clearly [**18] expressed defendants’ intention to disclaim liability for all negligence, including their own.”).

6 None of the cases cited by Plaintiff discuss this line of cases. Instead, he relies upon older cases that do not hold that releases must include the magic words of “negligence” or “negligent acts” and do not substantively analyze whether “any” or “all” language covers negligence claims. See, e.g., Gen. Acc. Fire & Life Assur. Corp., Ltd. v. Finegan & Burgess, Inc., 351 F.2d 168 (6th Cir. 1965); Tope v. Waterford Hills Racing Corp., 81 Mich. App. 591, 265 N.W.2d 761 (1978). He also distinguishes this matter from a recent unpublished Sixth Circuit case, Fish v. Home Depot USA, Inc. 455 F. App’x 575 (6th Cir. 2012). There, the Sixth Circuit found that a ladder rental contract favored indemnification for several reasons: (1) the waiver included a rental “as is” provision; (2) the waiver had an acknowledgment that the plaintiff inspected the ladder; (3) the plaintiff had rented other equipment from the defendant before; and (4) because the plaintiff was renting and not purchasing the ladder, he was “undoubtedly aware” that others had used the ladder before him, and was therefore aware that there was a possibility [**19] that “latent equipment problems can be caused by ordinary wear and tear.” Id. at 580. Plaintiff distinguishes Fish, asserting that he did not agree to an “as is” provision,” had not dealt with Red Frog or the Warrior Dash before, did not inspect the course beforehand, and was not aware that the course would “become dangerous though the ‘wear and tear’ of other participants.” (Plf’s Resp., Dkt. # 8, at 10). Fish is not binding authority, and even if it was, it is not applicable to the instant matter because it still does not address the core issue of whether the Waiver’s “any” or “all” language covered Defendant’s own negligent conduct.

More recently, the Michigan Court of Appeals distinguished this line of cases in Xu v. Gay. In that matter, a man using a treadmill at a fitness center fell, hit his head, and died. 257 Mich. App. at 265. Distinguishing Skotak and Cole, the Michigan Court of Appeals rejected the notion that the parties intended to release the fitness center from liability stemming from its own negligence:

We find that the language in the alleged release is unambiguous, and clearly states that defendant would not assume responsibility for “any injuries and/or sicknesses [**20] incurred to [sic] me or any accompanying minor person as a result of entering the premises and/or using any of the facilities.” However, this provision does not inform the reader that he is solely responsible for injuries [*776] incurred or that he waives defendant’s liability by relinquishing his right to sue, nor does it contain the words “waiver,” “disclaim,” or similar language that would clearly indicate to the reader that by accepting its terms he is giving up the right to assert a negligence claim.

Id. at 275.

Here, as with Skotak, Cole, and Gara, the Waiver unambiguously covered Defendant’s own negligence. The Waiver warned Plaintiff that “enter[ing] Warrior Dash [was] a hazardous activity” and that it presented “extreme obstacles.” Plaintiff agreed to “assume all risks associated with competing in Warrior Dash” and acknowledged that there was “an inherent risk of injury when choosing to participate in recreational activities and programs.” Most critically, Plaintiff “voluntarily assume[d] the full risk of any and all injuries, damages or loss, regardless of severity, that [he] . . . may sustain as a result of . . . participation [in the Warrior Dash].” Likewise, he also agreed to “waive, [**21] release, absolve, indemnify, and agree to hold harmless . . . Red Frog Events, LLC . . . for any claim arising out of an injury to me and from any and all claims . . . [including] tort . . . arising out of or connected with [his] participation in Warrior Dash.” ⁷ The Waiver therefore unambiguously covered Defendant’s own negligence. Finally and unlike Xu, the Waiver, titled as a “Waiver and Release of Claims, Assumption of Risk and Warning of Risk,” informed Plaintiff that he was relinquishing his right to sue Defendant for claims resulting from his participation in the Warrior Dash.

7 Plaintiff’s argument that “[t]here was nothing in Red Frog’s indemnity provision that warned participants that Red Frog’s agents would be interfering with the actual race or to notify James that there was potential that the risks of the race would be or could be heightened by the presence of Red Frog’s agents, or that injury could result from the negligence of Red Frog or its agents” misses the mark. (Plf’s Resp., Dkt. # 8, at 9) (contrasting with Sherman, see footnote 5). Whether the indemnity provision warned of certain negligent acts or not, just as in Skotak, any claim arising out of negligence is [**22] barred given the Waiver’s express and unambiguous language.

Notwithstanding this clear language, Plaintiff claims other language contained in the Waiver “gave James the false impression that Red Frog would not be negligent in the operation and performance of this racing event.” (Plf’s Resp., Dkt. # 8, at 10). For support, Plaintiff points to the disclaimer portion of the Waiver stating that Red Frog: (1) “is committed to conducting its race and activities in a safe manner and holds the safety of participants in high regard;” and (2) “continually strives to reduce such risks and insists that all participants follow safety rules and instructions that are designed to protect the participants’ safety.” Plaintiff omits, however, the remainder of the disclaimer, which provides that “participants . . . registering for the race, programs, and activities must recognize that there is an inherent risk of injury when choosing to participate in recreational activities and programs.”

This argument is without merit. In Cole, the Michigan Court of Appeals rejected a similar argument in a personal injury case arising out of an accident at a horse-racing facility. There, the plaintiff “acknowledge[d] [**23] that due to the unique combination of dangerous factors in the restricted area associated with the stabling, exercising and training of a large number of horses, and the presence of tradespeople, jockeys, owner and other personnel in the area, there are inherent dangers in the restricted area which [the defendant] cannot eliminate after exercising [*777] reasonable care.” 241 Mich. App. at 14. In rejecting the argument that the “which [the defendant] cannot eliminate after exercising reasonable care” language limited the scope of the release (to not cover negligent acts), the court reasoned that the language “specifically addressed the dangerous conditions and inherent dangers in the restricted area of the racetrack.” Id. The “reasonable care” language was, therefore, “an unambiguous emphasis of the fact that being in the restricted area entails dangers that cannot be eliminated by exercising reasonable care.” Id.

Just as in Cole, the Waiver’s language here regarding Defendant’s commitment to conducting the Warrior Dash in a safe manner and to reducing risks cannot be read to carve out Defendant’s negligence from the Waiver’s scope. The very next sentence expressly warns participants of the [**24] “inherent risk of injury when choosing to participate in recreational activities and programs.” The disclaimer language, read in toto, and pursuant to Cole, serves only as “an unambiguous emphasis” that participating in the Warrior Dash carries a risk of injury. This is especially true when, as discussed above, read in conjunction with the fact that the Waiver releases liability with respect to “any and all injuries” sustained as a result of participation in the Warrior Dash. Id. at 14-15.

In the alternative, Plaintiff presents an interesting theory with respect to the Waiver’s enforceability: Defendant’s conduct — the emcee’s statements encouraging participants to dive head first into the mud pit — “constituted a waiver and modification of the release of liability.” (Plf’s Resp., Dkt. # 8, at 14). In sum, Plaintiff argues, “[t]his conduct led James to believe a waiver had occurred and it was okay and safe to dive into the mud pit. Red Frog failed to correct the actions of participants who dove into the mud pit or further instruct through the speaker system that this type of behavior was not permitted.” (Id.)

To find an implied waiver, the conduct of the party against whom waiver is [**25] asserted must be inconsistent with strict compliance with the terms of the contract. H J Tucker & Associates, Inc. v Allied Chucker & Eng’g Co., 234 Mich. App 550, 564-65, 595 N.W.2d 176 (1999). Though Plaintiff does not articulate this theory as such, Plaintiff essentially argues a waiver by estoppel theory. “[A] waiver by estoppel implied from conduct focuses not on the intent or purpose of the waiving party but on the effect of its conduct on the other party.” 13 Williston on Contracts § 39:29 (4th ed). “To prove waiver by estoppel, a party need only show that it was misled to its prejudice by the conduct of the other party into the honest and reasonable belief that the latter was not insisting on, and was therefore giving up, some right.” Id.

Plaintiff’s argument, however, is untenable. Even assuming that Michigan law permits parties to orally modify a waiver and release, ⁸ the most Plaintiff has alleged is that Defendant’s actions modified the provision prohibiting Plaintiff from diving into the mud pit head first. Defendant’s actions cannot be interpreted, as pled by Plaintiff, as an agreement to modify the Waiver such that Plaintiff could hold Defendant liable for negligence due to injuries [**26] arising out of his participation in the Warrior Dash. Therefore, the Waiver bars Plaintiff’s negligence claim.

8 Neither Plaintiff nor Defendant briefed this issue. The Court also notes that the Waiver does not include an integration clause.

[*778] C. Plaintiff’s gross negligence (Count II) and willful and wanton misconduct (Count III) claims⁹

9 These claims are not within the Waiver’s scope as “a party may not insulate himself against liability for gross negligence or wilful and wanton misconduct.” Lamp v. Reynolds, 249 Mich. App. 591, 594, 645 N.W.2d 311 (2002).

1. Plaintiff has stated a claim for gross negligence

Gross negligence is “conduct so reckless as to demonstrate a substantial lack of concern for whether injury results.” M.C.L. § 600.2945(d); Xu, 257 Mich. App. at 269. “Evidence of ordinary negligence does not create a question of fact regarding gross negligence.” Xu, 257 Mich. App. at 271. Taking Plaintiff’s allegations as true, Plaintiff’s gross negligence count states a claim for relief. As Plaintiff emphasizes, Defendant not only made participants acknowledge that the Warrior Dash is a “hazardous” activity and that it presents “extreme obstacles,” it expressly enumerated rules regarding how participants [**27] were to enter the mud pit without doing so for other obstacles. Simply, Plaintiff has adequately alleged that Defendant was aware of the dangers presented by the obstacles throughout the Warrior Dash and especially those presented by diving headfirst into the mud pit. Despite this awareness, it is plausible that the act of encouraging Plaintiff — and other participants — to dive into the mud pit head first was so reckless to demonstrate a substantial lack of concern for whether injury would result. Cf. Kahn v. East Side Union High Sch. Dist., 31 Cal. 4th 990, 1012-13, 4 Cal. Rptr. 3d 103, 75 P.3d 30 (2003) (finding issue of fact regarding swimming coach’s recklessness where a student broke her neck after diving into shallow water after the coach, among other things, allegedly “ignored her overwhelming fears and made a last-minute demand that she dive during competition, in breach of a previous promise that she would not be required to dive”); Falgoust v. Richardson Indus., Inc., 552 So. 2d 1348 (La. Ct. App. 1989) (affirming apportionment of fault to pool owner who “not only failed to warn or reprimand plaintiff [for diving into a non-diving pool], but [who also] encouraged diving by doing it himself”).

This is therefore [**28] distinguishable from the case relied upon by Defendant where the plaintiff just alleged that the defendant “acted in a grossly negligent manner.” See Thomas v. Rijos, 780 F. Supp. 2d 376, 380 (D.V.I. 2011). Moreover, that “there are no specific allegations that [Defendant] knew when Plaintiff approached the mud pit that he would dive into it or that he would be injured,” as Defendant asserts (Def’s Br., Dkt. # 4, at 19), is irrelevant to the present inquiry. Defendant’s knowledge of Plaintiff’s intent before he dove into the mud pit is immaterial as to whether the act of encouraging Plaintiff to dive head first demonstrated a substantial lack of concern for whether injury would result. ¹⁰

10 Defendant urges this Court to “take into account the undisputed fact that Plaintiff expressly acknowledged the danger prior to encountering it when he signed the Waiver . . . and was specifically instructed not to ‘dive or enter the mud pit head first.'” (Def’s Br., Dkt. # 4, at 19). Such an argument has no bearing on whether Defendant demonstrated a substantial lack of concern for whether an injury results with respect to Plaintiff’s claim that Defendant encouraged Plaintiff to dive head first into [**29] the mud pit. This is not to say that Defendant’s argument might not have some merit down the road as, for example, Michigan law requires the allocation of damages “in direct proportion to the person’s percentage of fault.” M.C.L. § 600.2957(1).

[*779] In sum, Plaintiff has stated a claim for gross negligence.

2. Plaintiff has stated a claim for willful and wanton misconduct

Willful and wanton misconduct is separate and distinct from gross negligence. Xu, 257 Mich. App. at 269 n.3 (citing Jennings v. Southwood, 446 Mich. 125, 138, 521 N.W.2d 230 (1994)); Burnett v. City of Adrian, 414 Mich. 448, 462, 326 N.W.2d 810 (1982) (Moody, J., concurring) (“[W]ilful and wanton misconduct . . . [is] qualitatively different from and more blameworthy than ordinary, or even gross, negligence.”). The elements of a willful and wanton misconduct claim are: “(1) knowledge of a situation requiring the exercise of ordinary care and diligence to avert injury to another, (2) ability to avoid the resulting harm by ordinary care and diligence in the use of the means at hand, and (3) the omission to use such care and diligence to avert the threatened danger, when to the ordinary mind it must be apparent that the result is likely to prove disastrous [**30] to another.” Miller v. Bock, 223 Mich. App. 159, 166, 567 N.W.2d 253 (1997) (citing Jennings, 446 Mich. at 137). Michigan’s Supreme Court has clarified that “willful and wanton misconduct is made out only if the conduct alleged shows an intent to harm or, if not that, such indifference to whether harm will result as to be the equivalent of a willingness that it does. Willful and wanton misconduct is not . . . a high degree of carelessness.” Jennings, 446 Mich. at 138 (1994) (emphasis omitted). It is, therefore, “in the same class as intentional wrongdoing.” Boumelhem v. Bic Corp., 211 Mich. App. 175, 185, 535 N.W.2d 574 (1995).

The seminal Michigan case on point with respect to willful and wanton misconduct is Burnett v. City of Adrian. In that case, the City of Adrian created Lake Adrian to use as a reservoir for its water treatment facilities. 414 Mich. at 458. According to the plaintiffs’ complaint, a 14-year old boy drowned after walking off the edge of a submerged structure that the City of Adrian failed to destroy or level when it created the lake. Id. The boy drowned after being swept away by “an unnatural current” created by the submerged structure. Id. Finally, the complaint alleged that “that the city [**31] knew that the structure existed from maps at the time of flooding and from the fact that the structure is visible when the water level is low; that the city knew or had reason to know of the potential harm created for swimmers, including children, who used the area; and that it failed to avert the danger by destroying the structure, fencing the lake, or posting warnings.” Id. at 458-59. Taking these allegations as true, the Michigan Supreme Court found that the plaintiffs “barely” asserted enough facts to make out the claim that the City of Adrian “was indifferent to the likelihood that catastrophe would come to a member of the public using the lake, an indifference essentially equivalent to a willingness that it occur.” Id. at 456.

Applying this standard, it is plausible — though barely — that Defendant’s actions amounted to willful and wanton misconduct. The Michigan Supreme Court has often noted that “[i]t is most difficult to determine, in a particular case, where negligence ends and wilful and wanton begins.” Id. at 477 (Moody, J, concurring) (citing Goss v. Overton, 266 Mich. 62, 253 N.W. 217 (1934) and Finkler v. Zimmer, 258 Mich. 336, 241 N.W. 851 (1932)). “This caution is appropriate in the case at hand, [**32] because the [gross] negligence claim stands.” Bondie v. BIC Corp., 739 F. Supp. 346, 352 [*780] (E.D. Mich. 1990). Here, a reasonable jury might conclude that the act of encouraging participants to jump head first into the mud pit despite knowing the risks to the contrary — at the end of a grueling physical endurance challenge when participants are likely to be physically and mentally exhausted — could be interpreted as such “indifferen[ce] to the likelihood that catastrophe would come to a [race participant.]” Burnett, 414 Mich. at 456. The Court reaches this conclusion with some significant reservation as to whether discovery will produce such facts. However, giving Plaintiff the benefit of every doubt and knowing that he need only “nudge[ his] claims across the line from conceivable to plausible” in order to survive a motion to dismiss under Rule 12(b)(6), Twombly, 550 U.S. at 570, it seems appropriate here to allow Plaintiff the opportunity to try to develop his case. This is particularly so given that the facts set forth in Burnett also “barely” stated a claim and that Plaintiff’s gross negligence claim also survives. Accordingly, Plaintiff has pled enough facts sufficient to plausibly [**33] state a claim for willful and wanton misconduct.

IV. CONCLUSION

For all of the foregoing reasons,

IT IS HEREBY ORDERED that Defendant’s Motion for Summary Judgment (Dkt. # 4) is partially granted. Accordingly, the Court dismisses Plaintiff’s Count I (negligence) with prejudice.

IT IS SO ORDERED.

Dated: October 22, 2013

/s/ Gerald E. Rosen

GERALD E. ROSEN

CHIEF, U.S. DISTRICT COURT

Donahue v. Ledgends, Inc., 2014 Alas. LEXIS 153

Claire A. Donahue, Appellant and Cross-Appellee, v. Ledgends, Inc. d/b/a Alaska Rock Gym, Appellee and Cross-Appellant.

Supreme Court Nos. S-14910/14929, No. 6932

SUPREME COURT OF ALASKA

2014 Alas. LEXIS 153

August 1, 2014, Decided

NOTICE:

THIS OPINION IS SUBJECT TO CORRECTION BEFORE PUBLICATION IN THE PACIFIC REPORTER. READERS ARE REQUESTED TO BRING ERRORS TO THE ATTENTION OF THE CLERK OF THE APPELLATE COURTS.

PRIOR HISTORY: [*1] Appeal from the Superior Court of the State of Alaska, Third Judicial District, Anchorage, Andrew Guidi, Judge. Superior Court No. 3AN-10-07305 CI.

CASE SUMMARY:

OVERVIEW: HOLDINGS: [1]-Plaintiff alleged injured party’s negligence claim failed because a release stated waived risks, used “negligence,” stated important factors in emphasized language, specifically disclaimed liability, did not imply safety standards conflicting with a release, was not contested on public policy grounds, and was not modified by advertising; [2]-The Uniform Trade Practices and Consumer Protection Act, AS 45.50.471 et seq., did not apply because conflicts with a personal injury claim barred assuming such a legislature intent, which “ascertainable loss of money or property” in AS 45.50.531(a) did not state; [3]-It was no clear error to find defendant gym waived Alaska R. Civ. P. 68 attorney’s fees because it only raised its offer of judgment when seeking fees under an indemnity clause, and only raised enhanced fees under Alaska R. Civ. P. 82, before its reconsideration motion.

OUTCOME: Judgment affirmed.

COUNSEL: Christine S. Schleuss, Law Office of Christine S. Schleuss, Anchorage, for Appellant and Cross-Appellee.

Tracey L. Knutson, Girdwood, for Appellee and Cross-Appellant.

JUDGES: Before: Fabe, Chief Justice, Winfree, Stowers, Maassen, and Bolger, Justices.

OPINION BY: MAASSEN

OPINION

MAASSEN, Justice.

I. INTRODUCTION

This case arises from an injury at a climbing gym. Claire Donahue broke her tibia during a class at the Alaska Rock Gym after she dropped approximately three to four-and-a-half feet from a bouldering wall onto the floor mat. Before class Donahue had been required to read and sign a document that purported to release the Rock Gym from any liability for participants’ injuries.

Donahue brought claims against the Rock Gym for negligence and violations of the Uniform Trade Practices and Consumer Protection Act (UTPA). The Rock Gym moved for summary judgment, contending that the release bars Donahue’s negligence claim. It also moved to dismiss the UTPA claims on grounds that the act does not apply to personal injury claims and that Donahue failed to state a prima facie [*2] case for relief under the act. Donahue cross-moved for partial summary judgment on the enforceability of the release as well as the merits of her UTPA claims. The superior court granted the Rock Gym’s motion and denied Donahue’s, then awarded attorney’s fees to the Rock Gym under Alaska Civil Rule 82.

Donahue appeals the grant of summary judgment to the Rock Gym; the Rock Gym also appeals, contending that the superior court should have awarded fees under Alaska Civil Rule 68 instead of Rule 82. We affirm the superior court on all issues.

II. FACTS AND PROCEEDINGS

Ledgends, Inc. does business as the Alaska Rock Gym, a private indoor facility that is open to the public. Its interior walls have fixed climbing holds and routes; for a fee, it provides classes and open gym or free climbing time. There are signs posted around the Rock Gym warning of the dangers of climbing, including falling; at her deposition Donahue did not dispute that the signs were there when she visited the gym.

Donahue had been thinking about trying rock climbing for several years, and she finally decided in March 2008 to attend a class at the Rock Gym called “Rockin’ Women.” She testified that she chose the class because she thought it could be tailored to specific [*3] skill levels, and because she “got the impression [from the advertisements] that that is the type of group it was, that it was a . . . safe way to learn to climb.” She also testified she understood that the essential risk of climbing is falling.

Donahue had no rock climbing experience, but she was an occasional runner and cyclist and had pursued other high-risk athletic activities such as kite-boarding. She had been a river guide on the Colorado River after college. She had engaged in physical occupations such as commercial fishing and construction. She testified that she understood the nature of risky activities and felt competent to decide about them for herself. In connection with other recreational activities, she had signed releases and waivers similar to the one she signed at the Rock Gym. She testified that she understood that parties who sign contracts generally intend to be bound by them.

When Donahue arrived at the Rock Gym for her first class, she was given a document entitled “Participant Release of Liability, Waiver of Claims, Assumption of Risks, and Indemnity Agreement — Alaska Rock Gym.” She was aware of the document’s nature and general intent but testified that although [*4] she signed it voluntarily, she did not read it closely.

The release contains nine numbered sections on two single-spaced pages. There is also an unnumbered introductory paragraph; it defines the Rock Gym to include, among others, its agents, owners, participants, and employees, as well as “all other persons or entities acting in any capacity on its behalf.”

Section one of the release contains three paragraphs. The first recites the general risks of rock climbing, including injury and death, and explains that these risks are essential to the sport and therefore cannot be eliminated. The second paragraph lists about a dozen specific risks inherent in rock climbing, including “falling off the climbing wall,” “impacting the ground,” “the negligence of other[s],” and “my own negligence[,] inexperience, . . . or fatigue.” The third paragraph asserts that the gym and its instructors “seek safety, but they are not infallible.” It describes some errors instructors might make, including being ignorant of a participant’s abilities and failing to give adequate warnings or instructions. The final sentence in the third paragraph reads, “By signing this [release], I acknowledge that I AM ULTIMATELY RESPONSIBLE [*5] for my own safety during my use of or participation in [Rock Gym] facilities, equipment, rentals, or activities.”

Section two begins, “I expressly agree and promise to accept and assume all the risks . . .”; it then highlights the voluntary nature of participation in Rock Gym activities.

Section three is the clause that releases the Rock Gym from liability (the releasing clause). It reads in full,

I hereby voluntarily release, forever discharge, and agree to indemnify and hold harmless the [Rock Gym] from any and all claims, demands, or causes of action, which are in any way connected with my participation in these activities or my use of [the Rock Gym's] equipment, rentals or facilities, including any such claims which allege negligent acts or omissions of [the Rock Gym].

The next six sections of the release address other issues: indemnification for attorney’s fees, certification that the participant is fit to climb, permission to provide first aid, permission to photograph for promotional purposes, the voluntariness of participation and signing the release, and jurisdiction for claims arising from the release.

The ultimate paragraph is printed in bold. It reads in part,

By signing this [*6] document, I acknowledge that if anyone is hurt or killed or property is damaged during my participation in or use of [Rock Gym] activities or premises or facilities or rental equipment, I may be found by a court of law to have waived my right to maintain a lawsuit against [the Rock Gym] on the basis of any claim from which I have released them herein.

Finally, centered on the second page, in bold capital letters directly above the signature line, the release reads: “I HAVE HAD SUFFICIENT OPPORTUNITY TO READ THIS ENTIRE DOCUMENT. I HAVE READ AND UNDERSTOOD IT, AND I AGREE TO BE BOUND BY ITS TERMS.”

Donahue’s hand-printed name and the date appear on the first page of the release, and her initials are at the bottom of the page; her signature appears on the second page, along with her printed name, her contact information, and the date.

Donahue completed her first class on harnessed climbing on March 23, 2008, and returned for a second class on May 11. When class began she was told that the day’s focus would be on bouldering, or unharnessed climbing on low walls. She did not express any hesitation. She climbed for almost two hours, successfully ascending and descending a number of routes. [*7] During this time she saw other people drop from the wall without injury. After another successful ascent near the end of the lesson, she felt unable to climb down using the available holds. Her feet were somewhere between three and four-and-a-half feet from the ground. Her instructor suggested that she drop to the mat and told her to be sure to bend her knees. Donahue landed awkwardly and broke her tibia in four places. She was attended to immediately by Rock Gym personnel and a physician who happened to be present.

The Rock Gym had run various advertisements during the two years preceding Donahue’s accident, using a number of different slogans. One newspaper ad, running on at least three occasions, stated: “[T]the only safe place in town to hang out.” Another Rock Gym ad showed an adult bouldering and a child climbing while harnessed; its text contained the same slogan and added, in part, “Trust us, it still exists. . . . [E]very child in your family will be reminded of what it’s all about — friends and fun.” A third ad described climbing programs for everyone in the family and said, “[Y]ou have nothing to lose and everything to gain.” In an affidavit, Donahue testified she had read these ads.

Donahue [*8] sued the Rock Gym for negligent failure to adequately train and supervise its instructors. She alleged that the Rock Gym was liable for its employee’s negligent instruction to drop from the bouldering wall. She also alleged a violation of the Unfair Trade Practices and Consumer Protection Act, contending that the Rock Gym’s advertisements “misleadingly advertised [the gym] as a safe place where users of its services had nothing to lose and everything to gain.”

The Rock Gym moved for summary judgment on all of Donahue’s claims. She opposed the motion and cross-moved for partial summary judgment herself, arguing that the Rock Gym had violated the UTPA as a matter of law and that the release she had signed was null and void.

The superior court granted the Rock Gym’s motion and denied Donahue’s cross-motion. It then granted the Rock Gym, as prevailing party, partial attorney’s fees under Civil Rule 82(a)(3).

III. STANDARDS OF REVIEW

[HN1] We review grants of summary judgment de novo, determining whether the record presents any genuine issues of material fact.¹ In making this determination, we construe the facts in favor of the non-moving party.² If the record fails to reveal a genuine factual dispute and the moving [*9] party was entitled to judgment as a matter of law, the trial court’s grant of summary judgment must be affirmed.³

1 Hill v. Giani, 296 P.3d 14, 20 (Alaska 2013) (citing Yost v. State, Div. of Corps., Bus. & Prof’l Licensing, 234 P.3d 1264, 1272 (Alaska 2010)).

2 Id. (citing McCormick v. City of Dillingham, 16 P.3d 735, 738 (Alaska 2001)).

3 Kelly v. Municipality of Anchorage, 270 P.3d 801, 803 (Alaska 2012).

[HN2] We decide questions of law, including statutory interpretation, using our independent judgment.⁴ We will adopt the most persuasive rule of law in light of precedent, reason, and policy.⁵ This requires us, when interpreting statutes, to “look to the meaning of the language, the legislative history, and the purpose of the statute.”⁶

4 Therchik v. Grant Aviation, Inc., 74 P.3d 191, 193 (Alaska 2003).

5 ASRC Energy Servs. Power & Commc’ns, LLC v. Golden Valley Electric Ass’n, 267 P.3d 1151, 1157 (Alaska 2011).

6 Id.

[HN3] “A superior court’s determination whether waiver occurred is a question of fact that we review for clear error.”⁷

7 Sengul v. CMS Franklin, Inc., 265 P.3d 320, 324 (Alaska 2011).

IV. DISCUSSION

A. The Release Is Enforceable And Bars Donahue’s Negligence Claims.

Three cases define Alaska law on pre-activity releases from liability.⁸ [HN4] These cases consistently state that such releases are not per se invalid;⁹ in each of the cases, however, we concluded that the release at issue did not bar the plaintiff’s claim.

8 Ledgends, Inc. v. Kerr, 91 P.3d 960 (Alaska 2004); Moore v. Hartley Motors, Inc., 36 P.3d 628 (Alaska 2001); Kissick v. Schmierer, 816 P.2d 188 (Alaska 1991).

9 Kerr, 91 P.3d at 961-62 (noting that “under Alaska law pre-recreational exculpatory releases are held to a very high standard of clarity”); Moore, 36 P.3d at 631 (noting that “an otherwise valid release is ineffective when releasing a defendant from liability would violate public policy” (emphasis added)); Kissick, 816 P.2d at 191 (“A promise not to [*10] sue for future damage caused by simple negligence may be valid.” (quoting 15 Samuel Williston, A Treatise on the Law of Contracts § 1750A, at 143-45 (3d ed. 1972)); see also Mitchell v. Mitchell, 655 P.2d 748, 751 (Alaska 1982) (upholding provision not to sue in settlement agreement and noting that, “[a]s a matter of law, . . . a valid release of all claims will bar any subsequent claims covered by the release”).

Kissick v. Schmierer involved a plane crash that caused the deaths of all four people aboard.¹⁰ The three passengers had signed a covenant not to sue before they boarded the plane.¹¹ They agreed in the release not to bring a claim “for any loss, damage, or injury to [their] person or [their] property which may occur from any cause whatsoever.”¹² When the passengers’ surviving spouses filed wrongful death claims against the pilot, their claims were allowed to proceed despite the release.¹³ We ruled that [HN5] “[i]ntent to release a party from liability for future negligence must be conspicuously and unequivocally expressed.”¹⁴ We also held that a release must use the word “negligence” to establish the required degree of clarity, something the release in Kissick did not do.¹⁵ Further, since liability for “death” was not specifically disclaimed and the term “injury” [*11] was ambiguous, we held that the release did not apply to claims for wrongful death, construing it against the drafter.¹⁶

10 Kissick, 816 P.2d at 188.

11 Id. at 189.

12 Id.

13 Id.

14 Id. at 191 (citations omitted).

15 Id. (citing W.Page Keeton, et al., Prosser and Keeton on the Law of Torts § 68, at 483-84 (5th ed.1984) (footnotes omitted)).

16 Id. at 191-92.

The second case, Moore v. Hartley Motors, involved an injury during a class on driving all-terrain vehicles (ATVs).¹⁷ We first addressed whether the plaintiff’s signed release violated public policy.¹⁸ We noted that the type of service involved was neither essential nor regulated by statute;¹⁹ these factors, along with the voluntariness of the plaintiff’s participation, persuaded us that the defendants ²⁰ had no “decisive advantage in bargaining strength.”²¹ We therefore held that the release did not violate public policy.²²

17 36 P.3d 628, 629 (Alaska 2001).

18 Id. at 631-32.

19 Id. at 631-32 (noting that ATV riding is similar to parachuting, dirt biking, and scuba diving, for which releases have been upheld in other jurisdictions).

20 The defendants included the dealer that sold the plaintiff the ATV and referred her to the safety course, the ATV Safety Institute that developed the curriculum, and the individual instructor. Id. at 629.

21 Id. at 631-32.

22 Id.

We did decide, however, that the release did not conspicuously and unequivocally [*12] express an intent to release the defendants from liability for the cause of the exact injury that occurred — a rollover when the plaintiff drove over a big rock hidden in tall grass.²³ The release covered the inherent risks of ATV riding, but we found that it also included “an implied and reasonable presumption that the course [was] not unreasonably dangerous.”²⁴ We found there to be fact questions about whether “the course posed a risk beyond ordinary negligence related to the inherent risks of off-road ATV riding assumed by the release,” and we held that summary judgment for the defendants on the basis of the release was therefore improper.²⁵

23 Id. at 632.

24 Id.

25 Id. at 633-34.

The third case, Ledgends, Inc. v. Kerr, involved the same rock gym as this case.²⁶ It involved a similar injury as well, sustained when the plaintiff fell from a bouldering wall.²⁷ Unlike Donahue, however, who landed squarely on the floor mat, the plaintiff in Kerr was allegedly injured when her foot slipped through the space between two floor mats.²⁸ The plaintiff alleged the gym knew of the defect in the landing area but had failed to fix it.²⁹

26 91 P.3d 960 (Alaska 2004).

27 Id. at 961.

28 Id.

29 Id.

The superior court, whose order we approved and attached as an appendix to our opinion, cited Kissick [*13] for the notion that a pre-activity release for tortious conduct must be “clear, explicit, and comprehensible in each of its essential details.”³⁰ The superior court also noted the requirement that “such an agreement, read as a whole, must clearly notify the prospective releasor or indemnitor of the effect of signing the release.”³¹ With these principles in mind, the superior court pointed to language in the release that was problematic because it was internally inconsistent: the release stated that the gym would try to keep its facilities safe and its equipment in good condition, but it simultaneously disclaimed liability for actions that failed to meet such standards.³² The superior court construed this ambiguity against the drafter and held that the release was not valid as a bar to the plaintiff’s negligence claims, a holding we affirmed.³³

30 Id. at 961-62 (quoting Kissick v. Schmierer, 816 P.2d 188, 191 (Alaska 1991)) (internal quotation marks omitted).

31 Id. at 962 (quoting Kissick, 816 P.2d at 191) (internal quotation marks omitted).

32 Id. at 963.

33 Id.

In this case, the superior court concluded that Kissick, Moore, and Kerr, considered together, meant that [HN6] “an effective liability release requires six characteristics.” We agree with the superior court’s formulation of the list:

(1) the risk being waived must [*14] 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 by using simple words and capital letters; (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 superior court found that each of these characteristics was satisfied in this case, and again we agree.³⁴

34 Donahue does not challenge the release on public policy grounds, so the fourth characteristic of a valid release is satisfied here. 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. Kissick, 816 P.2d at 191 (“A promise not to sue for future damage caused by simple negligence may be valid.” (internal citations [*15] and quotation marks omitted)). The New Jersey Supreme Court, in a case involving claims against a health club, held that liability releases in gym cases do not violate public policy in part because gyms remain liable for their gross negligence or recklessness — levels of culpability not alleged in this case. Stelluti v. Casapenn Enters., 203 N.J. 286, 1 A.3d 678, 681 (N.J. 2010); see also City of Santa Barbara v. Super. Ct., 41 Cal. 4th 747, 62 Cal. Rptr. 3d 527, 161 P.3d 1095, 1102-03 (Cal. 2007) (surveying jurisdictions and concluding that “[m]ost, but not all” hold that releases of ordinary negligence in recreational activities do not violate public policy but “the vast majority of decisions state or hold that such agreements generally are void” if they attempt to release “aggravated misconduct” such as gross negligence).

1. The risks being waived (falling and instructor negligence) are specifically and clearly set forth.

[HN7] A conspicuous and unequivocal statement of the risk waived is the keystone of a valid release.³⁵ Here, the release clearly and repeatedly disclosed the risk of the specific injury at issue: injury from falling while climbing. The following are excerpts from the Rock Gym’s release:

I specifically acknowledge that the inherent risks associated with rock climbing . . . include[], but [are] not limited to: falling off of the climbing wall, . . . impacting [*16] the ground . . . , general slips/trips/falls or painful crashes while using any of the equipment or walls or bouldering areas or landing pits or work-out areas or the climbing structures or the premises at large, climbing out of control or beyond my or another participant’s limits, . . . my own negligence or inexperience, dehydration or exhaustion or cramps or fatigue . . . .

To the extent that the risk at issue is the risk of hitting the ground after falling (or dropping in what is essentially an intentional fall), the first characteristic of a valid release is satisfied by this language.

35 Kerr, 91 P.3d at 961; Moore v. Hartley Motors, Inc., 36 P.3d 628, 632 (Alaska 2001); Kissick, 816 P.2d at 191.

Rather than focusing on her injury, however, Donahue focuses on its alleged cause, which she argues was the negligent training and supervision of Rock Gym instructors and the consequently negligent instructions she was given. She claims that the release did not specifically and clearly set forth this risk, and that she was therefore unaware that she was waiving the right to sue for instructor negligence.

But the release did cover this risk. The first paragraph expressly incorporates “employees” into the definition of the entity being released. The release further warns that Rock Gym “instructors, [*17] employees, volunteers, agents or others . . . are not infallible” and that “[t]hey may give inadequate warnings or instructions.” In its on-site interactions with the public, the Rock Gym necessarily acts through its instructors and other employees; Donahue knew she would be taking a class and that classes require instructors. It would not be reasonable to conclude that the Rock Gym sought a release only of those claims against it that did not involve the acts or omissions of any of its employees, and we cannot construe the release in that way.³⁶ We agree with the superior court’s conclusion that “the Release clearly expresses that it is a release of liability for the negligence of the releasor-participant, other participants, climbers, spotters or visitors, as well as [the Rock Gym's] negligence, including [Rock Gym] employees.”

36 See Kahn v. E. Side Union High Sch. Dist., 31 Cal. 4th 990, 4 Cal. Rptr. 3d 103, 75 P.3d 30, 40 (Cal. 2003) (holding that “the risks associated with learning a sport may themselves be inherent risks of the sport. . . . [A]nd . . . liability should not be imposed simply because an instructor asked the student to take action beyond what, with hindsight, is found to have been the student’s abilities” (internal citations and quotation marks omitted)).

Donahue also argues that [*18] she could not understand the risks involved due to the release’s appearance and presentation. However, even viewing the facts in the light most favorable to her, the record does not support her argument. Although Donahue did not carefully read the release before signing it,³⁷ she was aware she was signing a liability release. She has signed a number of such documents in the past and was familiar with their general purpose. When asked to read the release at her deposition, she testified that she understood the pertinent risks it described. There is no reason to believe that she would have found it less comprehensible had she read it at the time she signed it.

37 [HN8] Failure to read a contract in detail before signing it is no defense to its enforceability. Lauvetz v. Alaska Sales & Serv., 828 P.2d 162, 164-65 (Alaska 1991).

2. The waiver of negligence is specifically set forth using the word “negligence.”

Kissick and Kerr both emphasize that a valid release from liability for negligence claims requires use of the word “negligence.”³⁸ This requirement is met here.

38 Kerr, 91 P.3d at 961; Kissick, 816 P.2d at 191.

The Rock Gym’s release first lists negligence among the inherent risks of climbing (“the negligence of other climbers or spotters or visitors or participants” and “my own negligence”). It then provides: [*19] “I hereby voluntarily release, forever discharge, and agree to indemnify and hold harmless the [Rock Gym] from any and all claims, demands, or causes of action, . . . including any such claims which allege negligent acts or omissions of [the Rock Gym].” (Emphasis added.) The phrase “any and all claims” is thus expressly defined to include claims for negligence.

Cases from other jurisdictions support the conclusion that the language in the Rock Gym’s release covers all of Donahue’s negligence claims. In Rosencrans v. Dover Images, Ltd., the plaintiff was injured on a motocross track after falling from his bike and being struck by two other riders.³⁹ A California Court of Appeal concluded that the signed waiver releasing the track from liability for “any losses or damages . . . whether caused by the negligence of [the Releasees] or otherwise” precluded the plaintiff’s claim “for ordinary negligence as well as negligent hiring and supervision” of employees at the racetrack (though it did not release the track from liability for gross negligence — a claim not made here).⁴⁰

39 192 Cal. App. 4th 1072, 122 Cal. Rptr. 3d 22, 27 (Cal. App. 2011).

40 Id. at 30. See also Morris v. JTM Materials, Inc., 78 S.W.3d 28, 49 (Tex. App. 2002) (“Negligent hiring, retention, and supervision claims are all simple negligence causes of action based on an [*20] employer’s direct negligence rather than on vicarious liability.” (citations omitted)).

In short, the requirement that a waiver of negligence be specifically set out using the word “negligence” is satisfied by the Rock Gym’s release.

3. The important factors are brought home to the releasor in clear, emphasized language with simple words and capital letters.

Donahue argues that although “negligence” is expressly mentioned and disclaimed in the release, its placement at the end of long sentences written in small font rendered its presence meaningless to her. Quoting a California case, she argues that when the risk of negligence is shifted, a layperson “should not be required to muddle through complex language to know that valuable, legal rights are being relinquished.”⁴¹ Donahue also cites New Hampshire and Washington cases in which the structure and organization of releases obscured the language that purported to shield the defendants from claims.⁴² These cases considered factors such as “whether the waiver is set apart or hidden within other provisions, whether the heading is clear, [and] whether the waiver is set off in capital letters or in bold type.”⁴³ In one Washington case, a release [*21] was invalidated because the releasing language was in the middle of a paragraph.⁴⁴

41 Conservatorship of the Estate of Link v. Nat’l Ass’n for Stock Car Auto Racing, Inc., 158 Cal. App. 3d 138, 205 Cal. Rptr. 513, 515 (Cal. App. 1984).

42 See Wright v. Loon Mtn. Recreation Corp., 140 N.H. 166, 663 A.2d 1340, 1342 (N.H. 1995); Johnson v. UBAR, LLC, 150 Wn. App. 533, 210 P.3d 1021, 1023 (Wash. App. 2009).

43 Johnson, 210 P.3d at 1023 (citing Baker v. City of Seattle, 79 Wn.2d 198, 484 P.2d 405 (Wash. 1971)).

44 Baker, 484 P.2d at 407.

Fundamentally, Donahue argues that the Rock Gym’s release was so ambiguous and laden with legalese that she lacked any real ability to understand that she was agreeing to release the Rock Gym from the negligence of its instructors. She complains of the release’s “lengthy, small-printed, and convoluted” language which required a “magnifying glass and lexicon” to decipher. She points out that the clause purporting to release the Rock Gym from liability is not obvious or emphasized through bold print or capital letters. She testified at her deposition that she believed the waiver shielded the gym only “from frivolous lawsuits, from people blaming them for something that’s not their fault.”

It is true that the release’s text is small and the releasing clause is in the middle of the document toward the bottom of the first page. But the clauses addressing negligence do not appear to be “calculated to conceal,” as Donahue argues. Though not highlighted, they are in a logical place where they cannot be missed by someone who reads the release. The clause releasing the Rock Gym from liability is [*22] a single sentence set out as its own numbered paragraph, and it is not confusing or needlessly wordy.⁴⁵ The inherent risks of climbing are enumerated in great detail but using ordinary descriptive language that is easy to understand.⁴⁶ Several sentences are devoted to the role of the gym’s “instructors, employees, volunteers, agents or others,” stating that they “have difficult jobs to perform,” that they “seek safety, but they are not infallible,” and that they may “be ignorant of mine or another participant’s fitness or abilities” and “may give inadequate warnings or instructions.”

45 Paragraph 3 of the release reads: “I hereby voluntarily release, forever discharge, and agree to indemnify and hold harmless the [Rock Gym] from any and all claims, demands, or causes of action, which are in any way connected with my participation in these activities or my use of [the Rock Gym's] equipment, rentals or facilities, including any such claims which allege negligent acts or omissions of [the Rock Gym].”

46 Paragraph 1 of the release lists the inherent risks of climbing as including “but . . . not limited to”:

falling off of the climbing wall, being fallen on or impacted by other participants, poor or [*23] improper belaying, the possibility that I will be jolted or jarred or bounced or thrown to and fro or shaken about while climbing or belaying, entanglement in ropes, impacting the ground and/or climbing wall, loose or dropped or damaged ropes or holds, equipment failure, improperly maintained equipment which I may or may not be renting from [the Rock Gym], displaced pads or safety equipment, belay or anchor or harness failure, general slips/trips/falls or painful crashes while using any of the equipment or walls or bouldering areas or landing pits or work-out areas or the climbing structures or the premises at large, climbing out of control or beyond my or another participant['s] limits, 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, mine or others’ failure to follow the rules of the [Rock Gym], my own negligence or inexperience, dehydration or exhaustion or cramps or fatigue — some or all of which may diminish my or the other participants’ ability to react or respond.

Because [HN9] releases should be read “as a whole” in order to decide whether they “clearly [*24] notify the prospective releasor or indemnitor of the effect of signing the agreement,”⁴⁷ we consider these provisions in the context of the entire document. Three other sections of emphasized text mitigate Donahue’s complaints about ambiguity and incomprehensibility. First, section one reads in part, “I AM ULTIMATELY RESPONSIBLE for my own safety during my use of or participation in [Rock Gym] facilities, equipment, rentals or activities” (bold in original). This alone makes it clear to the reader that the Rock Gym, to the extent it is allowed to do so, intends to shift responsibility to the climber regardless of the actions of anyone else. Second, a final unnumbered paragraph, set out in bold letters, reads in part: “By signing this document, I acknowledge that if anyone is hurt or killed or property is damaged during my participation in or use of [Rock Gym] activities or premises or facilities or rental equipment, I may be found by a court of law to have waived my right to maintain a lawsuit against [the Rock Gym] on the basis of any claim from which I have released them herein.” And finally, directly above the lines where Donahue entered her signature, her printed name, her contact [*25] information, and the date, the release reads, in bold and capital letters, “I HAVE READ AND UNDERSTOOD [THE RELEASE], AND I AGREE TO BE BOUND BY ITS TERMS.” If Donahue had read the release and found herself genuinely confused about any of its terms, she was prominently notified that she should inquire about it before signing.

47 Kissick v. Schmierer, 816 P.2d 188, 191 (Alaska 1991).

The New Hampshire case on which Donahue relies, Wright v. Loon Mountain Recreation Corp., examined the release in question to determine whether “a reasonable person in the position of the plaintiff would have understood that the agreement clearly and specifically indicated the intent to release the defendant from liability for its own negligence.”⁴⁸ Applying that test here, we conclude that a reasonable person in Donahue’s position could not have overlooked or misunderstood the release’s intent to disclaim liability. Our case law’s third characteristic of a valid release is therefore satisfied.

48 140 N.H. 166, 663 A.2d 1340, 1343-44 (N.H. 1995); see also Johnson, 210 P.3d at 1021 (holding reasonable persons could disagree about the conspicuousness of the release provision in the waiver, and remanding for trial).

4. Regardless of whether falling and instructor negligence are inherent risks of rock climbing, the release specifically disclaims [*26] liability for them.

The fifth characteristic set forth by the superior court ⁴⁹ is 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.”⁵⁰ This requirement stems from the release’s ill-defined scope in Moore; the injury that occurred — arguably caused by an unreasonably dangerous ATV training course — was not obviously included in the inherent risks of riding ATVs, which the signed release did intend to cover.⁵¹ Here, in contrast, the injury and its alleged causes are all expressly covered by the release, as explained above. Negligence claims are specifically contemplated, as are “falls,” “impact” with the ground, and “inadequate warnings or instructions” from Rock Gym instructors. Regardless of whether these are inherent risks of climbing, they are specifically covered by the release. This characteristic of a valid release is therefore satisfied.

49 As noted above, the fourth characteristic of a valid release — that it not violate public policy — is not at issue on this appeal. See supra note 34.

50 See Moore v. Hartley Motors, Inc., 36 P.3d 628, 633-34 (Alaska 2001).

51 Id.

5. The release does not represent or imply standards of safety or maintenance that [*27] conflict with an intent to release negligence claims.

The sixth characteristic of a valid release is that it does not imply standards of safety or maintenance that conflict with an intent to waive claims for negligence.⁵² The Rock Gym argues that nothing in the release confuses its purpose, unlike the release at issue in Kerr, which at least implicitly promised that equipment would be kept “in good condition.”⁵³ We agree. In fact, far from providing assurances of safety, the release highlights the fallibility of the Rock Gym’s employees, equipment, and facilities, explicitly stating that the equipment may “fail,” “malfunction[,] or be poorly maintained” and that the staff is “not infallible,” may be ignorant of a climber’s “fitness or abilities,” and “may give inadequate warnings or instructions.”

52 See Ledgends, Inc. v. Kerr, 91 P.3d 960, 962-63 (Alaska 2004).

53 Id. at 963.

Donahue agrees that the release is not internally inconsistent, but she argues that the advertisements run by the Rock Gym had the same confounding impact on her understanding of it as the release’s language about equipment maintenance had in Kerr. She contends that she relied on the ads’ assurances that the gym was “a safe place” and the class “would be a safe way to learn to climb” when [*28] she enrolled in the climbing class. She argues that these assurances created ambiguity that, as in Kerr, requires that the release be interpreted in a less exculpatory way.

Although extrinsic evidence may be admissible as an aid to contract interpretation,⁵⁴ the release here clearly defines climbing as an inherently risky activity. And we have said that

[HN10] where one section deals with a subject in general terms and another deals with a part of the same subject in a more detailed way, the two should be harmonized if possible; but if there is a conflict, the specific section will control over the general.⁵⁵

Were we to give the Rock Gym’s advertisements any weight in our analysis of the release, we would not find that their use of the word “safe” overrode the release’s very clear warnings about the specific risks of climbing.

54 Norville v. Carr-Gottstein Foods Co., 84 P.3d 996, 1004 (Alaska 2004) (citing Municipality of Anchorage v. Gentile, 922 P.2d 248, 256 (Alaska 1996)).

55 Id. (quoting Estate of Hutchinson, 577 P.2d 1074, 1075 (Alaska 1978)).

Because the advertisements cannot reasonably be considered as modifications to the release, and because the release does not otherwise contain implicit guarantees of safety or maintenance that could confuse its purpose, we find the final requirement of a valid release to be satisfied. The release thus satisfies all characteristics of a valid release [*29] identified by our case law, and we affirm the superior court’s grant of summary judgment to the Rock Gym on this issue.

B. The UTPA Does Not Apply To Personal Injury Claims.

[HN11] Under the UTPA, “[a] person who suffers an ascertainable loss of money or property as a result of another person’s act or practice declared unlawful by AS 45.50.471 may bring a civil action to recover for each unlawful act or practice three times the actual damages . . . .”⁵⁶ Donahue alleges that, by publishing ads that gave the impression the Rock Gym was safe, the Rock Gym engaged in “unfair methods of competition and unfair or deceptive acts or practices in the conduct of trade or commerce” which are unlawful under the statute.⁵⁷ [HN12] We have not yet decided whether the statutory phrase “loss of money or property” includes personal injury claims. We now hold that it does not.

56 AS 45.50.531(a) (emphasis added).

57 AS 45.50.471(a).

[HN13] The UTPA was “designed to meet the increasing need in Alaska for the protection of consumers as well as honest businessmen from the depredations of those persons employing unfair or deceptive trade practices.”⁵⁸ The act protects the consumer from deceptive sales and advertising practices,⁵⁹ and it protects honest businesses from their unethical [*30] competitors.⁶⁰ Donahue concedes that we have limited the UTPA to “regulating practices relating to transactions involving consumer goods and services.”⁶¹ She contends, however, that because we have never restricted the types of damages available for conduct within the UTPA’s reach, damages for personal injury should be recoverable.

58 W. Star Trucks, Inc. v. Big Iron Equip. Serv., Inc., 101 P.3d 1047, 1052 (Alaska 2004) (quoting House Judiciary Committee Report on HCSCS for S.B. 352, House Journal Supp. No. 10 at 1, 1970 House Journal 744) (court’s emphasis and internal quotation marks omitted).

59 See, e.g., Kenai Chrysler Ctr., Inc. v. Denison, 167 P.3d 1240, 1244-45 (Alaska 2007) (affirming superior court’s award of treble damages against a car dealer for its insistence on enforcing an invalid contract); Pierce v. Catalina Yachts, Inc., 2 P.3d 618, 624 (Alaska 2000) (holding unconscionable sailboat manufacturer’s warranty in favor of buyers).

60 See, e.g., Garrison v. Dixon, 19 P.3d 1229, 1230-31, 1236 (Alaska 2001) (holding suit to be frivolous where real estate buyer’s agents sued competitors, alleging false and misleading advertising); Odom v. Fairbanks Mem’l Hosp., 999 P.2d 123, 127, 131-32 (Alaska 2000) (holding viable physician’s claims against hospital for retaliatory and anticompetitive behavior).

61 See Roberson v. Southwood Manor Assocs., LLC, 249 P.3d 1059, 1062 (Alaska 2011) (holding the UTPA does not apply to residential leases) (citing Aloha Lumber Corp. v. Univ. of Alaska, 994 P.2d 991, 1002 (Alaska 1999) (holding the UTPA does not apply to the sale of standing timber because it is real property rather than a consumer good)).

The superior court observed that there is nothing [*31] in the UTPA’s legislative history to support Donahue’s contention that the Alaska Legislature intended the act “to expand liability for personal injury or wrongful death or to supplant negligence as the basis for such liability.” The superior court identified “significant incongruities between the elements of common law personal injury claims and the UTPA, which suggest that the two claims cannot be reconciled.” The court explained:

For most of the past twenty years the Alaska Legislature has enacted and amended, in various forms, multiple iterations of tort reform aimed at reducing, not expanding, the scope of civil liability for personal injury and wrongful death. Expanding UTPA liability to personal injury and wrongful death would contradict many of the tort reform provisions enacted by the legislature in AS 09.17.010-080. For example, AS 09.17.020 allows punitive damages only if the plaintiff proves defendant’s conduct was outrageous, including acts done with malice or bad motives, or with reckless indifference to the interest of another person. The UTPA, on the other hand, does not require such a culpable mental state and almost as a matter of course allows a person to receive trebled actual damages. [*32] AS 09.17.060 limits a claimant’s recovery by the amount attributable to the claimant’s contributory fault; the UTPA, in contrast, does not provide a contributory fault defense. Moreover, AS 09.17.080 apportions damages between multiple tortfeasors whereas the UTPA does not permit apportionment of damages. A UTPA cause of action for personal injury or wrongful death would sidestep all of these civil damages protections.

We agree with the superior court that [HN14] the private cause of action available under the UTPA conflicts in too many ways with the traditional claim for personal injury or wrongful death for us to assume, without clear legislative direction, that the legislature intended the act to provide an alternative vehicle for such suits. The language of AS 45.50.531(a) — “ascertainable loss of money or property” — does not provide that clear direction. The legislature is well aware of how to identify causes of action involving personal injury and wrongful death, does so in other contexts,⁶² and declined to do so in this statute.

62 See, e.g., AS 04.21.020(e) (for purposes of statute governing civil liability of persons providing alcoholic beverages, ” ‘civil damages’ includes damages for personal injury, death, or injury to property of a person”); [*33] AS 05.45.200(4) (in statutes governing liability of ski resorts, “‘injury’ means property damage, personal injury, or death”); AS 09.10.070(a) (providing general statute of limitations for “personal injury or death”); AS 09.17.010 (limiting noneconomic damages recoverable “for personal injury or wrongful death”); AS 46.03.825(b)(1) (providing that limitations on oil spill damages do not apply to “an action for personal injury or death”).

Other states have similar laws, and their courts’ interpretations are helpful. Section 531(a) has a counterpart in Oregon’s UTPA, which likewise allows private actions by those who suffer a “loss of money or property.”⁶³ The Oregon Court of Appeals, considering an action for personal injuries occurring after a mechanic allegedly misrepresented the state of a car’s brakes, held that the UTPA was not a vehicle for the pursuit of personal injury claims.⁶⁴ It held that the Act plainly had a restitutionary purpose — “i.e., restitution for economic loss suffered by a consumer as the result of a deceptive trade practice.”⁶⁵ It noted the lack of any legislative history “to the effect that by the adoption of that provision the legislature intended to confer upon private individuals a new cause of action for personal injuries, including [*34] punitive damages and attorney fees,” or of “any decisions to that effect by the courts of any of the many other states which have adopted similar statutes.”⁶⁶ It emphasized the availability of common law remedies, which provided a range of possible causes of action for personal injury — negligence, breach of warranty, and strict products liability — and noted that these remedies provide for a more expansive range of damages, such as pain and suffering, not available under the UTPA.⁶⁷

63 ORS 646.638(1); ORS 646.608.

64 Gross-Haentjens v. Leckenby, 38 Ore. App. 313, 589 P.2d 1209, 1210-11 (Or. App. 1979).

65 Id. at 1210; see also Fowler v. Cooley, 239 Ore. App. 338, 245 P.3d 155, 161 (Or. App. 2010).

66 Gross-Haentjens, 589 P.2d at 1210-11.

67 Id. at 1211. Other courts have reached similar conclusions. See Beerman v. Toro Mfg. Corp., 1 Haw. App. 111, 615 P.2d 749, 754 (Haw. App. 1980) (“[T]hough individual actions based on damage to a consumer’s property may be within the purview of [the Hawaii consumer protection act], the scope of the statutes does not extend to personal injury actions.”); Kirksey v. Overton Pub, Inc., 804 S.W.2d 68, 73 (Tenn. App. 1990) (“We must hold that the General Assembly intended for the Consumer Protection Act to be used by a person claiming damages for an ascertainable loss of money or property due to an unfair or deceptive act or practice and not in a wrongful death action.”); Stevens v. Hyde Athletic Indus., Inc., 54 Wn. App. 366, 773 P.2d 871, 873 (Wash. App. 1989) (“We hold actions for personal injury do not fall within the coverage of the [Washington consumer protection act].”).

We agree with the reasoning of the Oregon court and conclude that Alaska’s [*35] UTPA does not provide the basis for a claim for personal injury.

C. The Superior Court Did Not Clearly Err In Finding That The Rock Gym Waived Any Claim For Rule 68 Attorney’s Fees.

The superior court granted the Rock Gym, as the prevailing party, 20 percent of its reasonable, actual attorney’s fees under Civil Rule 82(b)(2). [HN15] Twenty percent of “actual attorney’s fees which were necessarily incurred” is the presumptively reasonable award for a party who prevails in a case resolved short of trial but who does not recover a money judgment.⁶⁸

68 See Williams v. Fagnani, 228 P.3d 71, 77 (Alaska 2010) (“Awards made pursuant to the schedule of Civil Rule 82(b) are presumptively correct.”).

The Rock Gym contends that it should have been awarded fees under Civil Rule 68 instead. [HN16] Rule 68 provides that (a) where an adverse party makes an offer to allow judgment entered against it in complete satisfaction of the claim, and (b) the judgment finally entered is at least five percent less favorable to the offeree than the offer, the offeree shall pay a percentage of the reasonable actual attorney’s fees incurred by the offeror from the date of the offer, the percentage depending on how close the parties are to trial when the offer is made. The Rock Gym made a Rule 68 offer of judgment on February 7, 2012, over two months before [*36] the April trial date. Donahue rejected the offer. Under these facts, once judgment was granted in the Rock Gym’s favor, the conditions for an award of 30 percent of “the offeror’s reasonable actual attorney’s fees” under the Rule 68 schedule were satisfied.⁶⁹

69 Alaska R. Civ. P. 68(b)(3). We note that the award of fees under Rule 68 was likely to be only nominally greater than that under Rule 82. Rule 68 affects only fees incurred after the date the offer is made, here February 7, 2012. The parties had already completed their summary judgment briefing by that time, and summary judgment was entered a month later.

The question presented here, however, is whether the Rock Gym waived any request for Rule 68 fees. The Rock Gym initially argued to the superior court that it should be awarded full fees because of express language in the release, which reads:

Should [the Rock Gym] or anyone acting on their behalf, be required to incur attorney’s fees and costs to enforce this agreement, I agree to indemnify and hold them harmless for all such fees and costs.

While arguing this point, the Rock Gym noted in a footnote that it was eligible for full fees under AS 09.30.065 (the statute authorizing the Rule 68 procedure). But it made that observation only in support of its argument [*37] for full fees under the release. Its motion did not otherwise mention Rule 68; rather, as an alternative to fees under the indemnity clause, the Rock Gym asked the court to use its discretion to award up to 80 percent of its fees under Rule 82 — far more than the scheduled award of 20 percent — in light of Donahue’s “vexatious” behavior, particularly having complicated the case with claims under the UTPA.

The superior court denied the Rock Gym’s request for full fees based on the release and ordered it to submit an affidavit detailing its counsel’s billings. The order also stated, “Plaintiff should address the effect, if any, of defendant’s Rule 68 offer on the amount of fees that may be awarded.” The Rock Gym submitted the required fee affidavit and also moved for reconsideration, again arguing that full fees should be awarded under the release’s indemnity clause; again relying on Rule 82 as an alternative; and failing to mention Rule 68 at all. Donahue submitted no response.

The superior court again rejected the Rock Gym’s argument based on the release’s indemnity clause and ordered the Rock Gym to submit a more detailed fee affidavit. The Rock Gym filed another affidavit which did not address the offer of judgment. [*38]

In its third order, the superior court again rejected the Rock Gym’s request for full attorney’s fees and awarded 20 percent of its fees under Rule 82(b)(2). The Rock Gym again moved for reconsideration. This time the Rock Gym argued that it was entitled to 30 percent of its fees under Rule 68, relying on the footnote in its first motion to contend that the argument was not waived.⁷⁰

70 As noted above, the increased percentage of attorney’s fees would only apply to those fees incurred after the date the offer of judgment was made; the amount at issue thus appears to be minimal.

The superior court then issued its fourth order on fees. It reaffirmed its Rule 82 award, finding that the Rock Gym had not adequately or timely made a claim under Rule 68. The court observed that the Rock Gym’s failure to make the claim earlier was likely a “tactical decision, initially, to pursue full attorney fees based on indemnity rather than present all of its alternative fee award theories at once.”

[HN17] The superior court’s finding that the Rock Gym waived a request for fees under Rule 68 is reviewed for clear error.⁷¹ We see no clear error here. The Rock Gym’s reference to its offer of judgment in its motion for attorney’s fees was made only to support its [*39] request for full fees under the indemnity provision of the release; the only alternative it expressly requested was an award of enhanced fees under Rule 82. As the superior court observed, it was not the court’s duty in this context “to solicit additional arguments for a moving party.”⁷² Nor was the superior court obliged to consider the Rule 68 argument when it was raised for the first time in motions for reconsideration.⁷³ And under the circumstances of this case, including the modest difference between fee awards under Rule 82 and Rule 68 and an apparent deficiency in the Rule 68 offer itself,⁷⁴ we cannot see plain error.⁷⁵

71 See Sengul v. CMS Franklin, Inc., 265 P.3d 320, 324 (Alaska 2011).

72 See, e.g., Forshee v. Forshee, 145 P.3d 492, 498 (Alaska 2006).

73 See Haines v. Cox, 182 P.3d 1140, 1144 (Alaska 2008) (holding that the plaintiff’s submission of evidence only when she moved for reconsideration forecloses her claim that the court abused its discretion by failing to rely on that evidence); Koller v. Reft, 71 P.3d 800, 805 n.10 (Alaska 2003) (noting that superior court is not obliged to consider documents presented for the first time with a motion for reconsideration).

74 The offer did not encompass the Rock Gym’s counterclaim against Donahue for contractual indemnity. See Progressive Corp. v. Peter ex rel. Peter, 195 P.3d 1083, 1089 (Alaska 2008) (“Both Rule 68 and AS 09.30.065 . . . implicitly require that an offer of judgment include all claims between the parties and be capable of completely resolving the case by way of a final [*40] judgment if accepted.”).

75 [HN18] The plain error doctrine requires a party to prove that the error waived below was “so prejudicial that failure to correct it will perpetuate a manifest injustice.” Forshee, 145 P.3d at 500 n.36 (quoting Hosier v. State, 1 P.3d 107, 112 n.11 (Alaska App. 2000)) (internal quotation marks omitted).

V. CONCLUSION

The judgment of the superior court is AFFIRMED.

Herberchuk v. Essex County 4H Club Camp, Inc. et al., 1999 Mass. Super. LEXIS 99

Alicia Herberchuk v. Essex County 4H Club Camp, Inc. et al.

96-4863

SUPERIOR COURT OF MASSACHUSETTS, AT MIDDLESEX

1999 Mass. Super. LEXIS 99

March 11, 1999, Decided

JUDGES: [*1] Raymond J. Brassard, Justice of the Superior Court.

OPINION BY: RAYMOND J. BRASSARD

OPINION

MEMORANDUM OF DECISION AND ORDER ON DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT

Plaintiff, Alicia Herberchuk (“Ms. Herberchuk”), brought this action for recovery of damages for injuries sustained while on land owned by defendant, Essex County 4H Club Camp, Inc. (“4H”), while attending an outing accompanied by co-workers employed by defendant, Teleglobe Communications, Inc. (“Teleglobe”). The plaintiff alleges that the injuries were caused by the negligence of the defendants and that there are genuine issues of material fact which preclude the entry of summary judgment on the issue of liability. For the reasons set forth below, defendants’ motions for summary judgment are ALLOWED.

BACKGROUND

Viewing the facts available at this summary judgment stage in the light most favorable to the nonmoving party, Ms. Herberchuk, the undisputed facts are as follows.

On August 28, 1993, Ms. Herberchuk attended an employee outing at a campground owned by 4-H. The campground had been rented through a third party under the name of Teleglobe by certain of its employees, but not by Teleglobe itself. At the cookout [*2] Ms. Herberchuk observed other guests using an apparatus known as a zipwire. The zipwire was used by children who attended the 4H’s camp during the summer months. Using the zipwire involved climbing up a ladder which reached to a platform mounted on a tree, and then leaving the platform to traverse the entire length of the wire. Proper use of the zipwire required a safety helmet, a safety harness, a drag line, and several people assisting the rider. The zipwire also included an 8 inch square 2,000 pound-test pulley to which the safety harness was attached. At the end of the camping season all removable equipment, including the safety equipment, was required to be removed from the zipwire, leaving only the cable and the platform.

On the date in question, a ladder found on or near the campground was propped against the tree upon which the platform was mounted by unidentified parties allowing guests to access the zipwire. Hanging from the zipwire was a nylon rope described as green in color which other guests were using to slide down the wire. No rules or instructions on how to use the zipwire were posted on or near the apparatus on the day in question. After watching several other [*3] people use the zipwire, Ms. Herberchuk decided she wanted to use the apparatus. In order to reach the zipwire, the plaintiff climbed the ladder. Although the ladder did not reach the platform at the end of the wire, Ms. Herberchuk was able to reach the platform by pulling herself up by her hands. Once on the platform Ms. Herberchuk wrapped the rope around her hands as she had seen others do and pushed herself off. Instead of traveling down the wire, however, Ms. Herberchuk fell to the ground sustaining serious injuries, including two elbow fractures and a fractured jaw. As result of these events Ms. Herberchuk commenced this lawsuit against 4H and Teleglobe. Both 4H and Teleglobe have moved for summary judgment on the issue of liability.

DISCUSSION

[HN1] Summary judgment shall be granted where there are no issues of material fact and the moving party is entitled to as a matter of law. Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716, 575 N.E.2d 734 (1991); Cassesso v. Comm’r of Correction, 390 Mass. 419, 422, 456 N.E.2d 1123 (1983); Community Nat’l Bank v. Dawes, 369 Mass. 550, 553, 340 N.E.2d 877 (1976); Mass.R.Civ.P. 56(c). The moving party bears the burden of affirmatively demonstrating the [*4] absence of a triable issue and that, therefore, she is entitled to judgment as a matter of law. Pederson v. Time, Inc., 404 Mass. 14, 17, 532 N.E.2d 1211 (1989). If the moving party establishes the absence of a triable issue, in order to defeat a motion for summary judgment, the opposing party must respond and allege facts which would establish the existence of disputed material facts. Id.

[HN2] A judge, when ruling on a motion for summary judgment must consider “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, in determining whether summary judgment is appropriate.” Flesner v. Technical Communications Corporation et al., 410 Mass. 805, 807, 575 N.E.2d 1107 (1991). Where no genuine issue of material fact exists, “the judge must ask himself not whether he thinks the evidence unmistakably favors one side or the other but whether a fair-minded jury could return a verdict for the plaintiff on the evidence presented.” Id. citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986).

1. The Claim Against 4-H.

[HN3] A property owner has a duty to maintain its property [*5] “in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk.” Mounsey v. Ellard, 363 Mass. 693, 708, 297 N.E.2d 43 (1973). A defendant is not required to “supply a place of maximum safety, but only one which would be safe to a person who exercises such minimum care as the circumstances reasonably indicate.” Toubiana v. Priestly, 402 Mass. 84, 88, 520 N.E.2d 1307 (1988). “A landowner has no duty to protect lawful visitors on his property from risks that would be obvious to persons of average intelligence.” Id. at 89.

In the present case, Ms. Herberchuk claims there are genuine issues of fact concerning the condition in which the zipwire was kept, as well as, what actions 4-H took to prevent unauthorized use of the apparatus. The evidence on the record, for the purposes of this motion, includes affidavits from both Ms. Herberchuk and Mr. Charles G. Ingersoll, a member of the 4-H Board of Trustees, as well as exhibits, including photographs of the area immediately before the accident.

In his affidavit, Mr. Ingersoll states that, while not having [*6] a specific memory of doing so the summer during which Ms. Herberchuk was injured, it was his practice to remove and put away for the winter all those removable parts and safety equipment associated with the zipwire at the end of each camping season (before the outing). Mr. Ingersol also stated that the ladder used by the plaintiff to get to the platform was not one of those presently used by the camp and that the pulley was not on the line the day of the outing. Ms. Herberchuk admitted in her affidavit that when she first arrived at the outing there was no ladder attached to the tree and that when she attempted to make her way to the platform she had to pull herself up because the wooden ladder placed there did not reach the platform. Ms. Herberchuk stated further that she did not know if the pulley was attached to the wire or where the strap had come from.

[HN4] “The question to be decided is whether the jury reasonably could have concluded that, in view of all the circumstances, an ordinarily prudent person in the defendant’s position would have taken steps, not taken by the defendant, to prevent the accident that occurred.” Id. at 89. In this case the evidence shows that 4-H [*7] had removed both the ladder and the safety equipment used with the zipwire during the camping season. Upon arriving at the outing Ms. Herberchuk saw no ladder allowing entry to the platform rendering the zipwire inaccessible, it being twenty feet above the ground. Ms. Herberchuk chose to use the zipwire without the benefit of safety equipment or instructions on the use of the device. Ms. Herberchuk also admitted in her deposition that she knew there was a chance she could be injured but decided to use the apparatus. Further, 4-H did not have a duty to warn Ms. Herberchuk of the obvious dangers involved with using the zipwire without safety equipment or instruction. “There is no duty to warn of dangers obvious to persons of average intelligence.” Thorson v. Mandell, 402 Mass. 744, 749, 525 N.E.2d 375 (1988). On this evidence, a fair minded jury could not return a verdict for the plaintiff.

2. The Claim Against Teleglobe.

[HN5] “Before liability for negligence can be imposed there must first be a legal duty owed by the defendant to the plaintiff, and a breach of that duty proximately resulting in the injury.” Davis v. Westwood Group, 420 Mass. 739, 743, 652 N.E.2d 567 (1995). [*8] Ms. Herberchuk urges that Teleglobe played a part in the organization and funding of the outing at which the plaintiff was injured. The evidence, however, is to the contrary. First, the outing was organized by Teleglobe employees because the company no longer sponsored such events. Second, the money to pay for the outing was raised by a group of employees independent of Teleglobe through the use of a raffle. Finally, Ms. Herberchuk’s attendance was not required by her employment and she received no compensation for attending. On this evidence a reasonable jury could not find that Teleglobe owed any duty to Ms. Herberchuk.

ORDER

For the foregoing reasons, it is hereby ORDERED that defendants’, 4-H and Teleglobe, motions for summary judgment are ALLOWED.

Raymond J, Brassard

Justice of the Superior Court

Dated: March 11, 1999

Wilson v. Bicycle South, Inc., 915 F.2d 1503; 1990 U.S. App. LEXIS 18903; 31 Fed. R. Evid. Serv. (Callaghan) 682

Lois Elaine Wilson, Plaintiff-Appellant, v. Bicycle South, Inc., a Georgia Corporation, et al., Defendants-Appellees

No. 89-8522

UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

915 F.2d 1503; 1990 U.S. App. LEXIS 18903; 31 Fed. R. Evid. Serv. (Callaghan) 682

October 30, 1990

SUBSEQUENT HISTORY: As Amended.

PRIOR HISTORY: [**1] Appeal from the United States District Court for the Northern District of Georgia. No.1: 85-cv-2658-CAM; Moye, Jr., Judge.

DISPOSITION: AFFIRMED.

COUNSEL: Robert H. Benfield, Jr., Middleton & Anderson, Atlanta, Georgia, for Appellant.

For Trek Bicycle: Stephen F. Dermer, Smith Gambrell & Russell, Atlanta, Georgia.

For Bicycle South: Jonathan Mark Engram, Swift Currie McGhee & Hiers, Thomas E. McCarter, Atlanta, Georgia.

For Opportunities, Inc.: Tommy T. Holland, Carter & Ansley, Christopher N. Shuman, Atlanta, Georgia.

For Skid Lid: Palmer H. Ansley, Long Weinberg Ansley & Wheeler, David A. Sapp, Atlanta, Georgia.

JUDGES: Clark, Circuit Judge, Morgan and Hill, ^* Senior Circuit Judges.

* See, Rule 34-2(b), Rules of the U.S. Court of Appeals for the Eleventh Circuit.

OPINION BY: HILL

OPINION

[*1504] HILL, Senior Circuit Judge

I. INTRODUCTION

This appeal concerns a products liability action based upon alleged breach of warranty, strict liability, and negligence resulting in injuries to Lois Elaine Wilson (“Wilson”), appellant. Wilson incurred head injuries during an accident in Georgia while on a cross-country bicycle trip. The jury returned a verdict in favor of Wilson and against one defendant on a bicycle helmet defect claim, and against Wilson and in favor of three defendants on a bicycle wheel defect claim. The district court granted a judgment notwithstanding the verdict on the helmet claim. Plaintiff appeals [*1505] this grant and also alleges several other errors by the district court concerning the bicycle wheel claim.

A. Issues Presented

Appellant raises four distinct categories of issues on appeal. First, appellant claims that the district court erred in granting appellee Skid Lid Manufacturing Company’s (“Skid Lid”) motion for a judgment notwithstanding [**2] the verdict. Second, appellant contends that the district court improperly commented on the evidence. Third, she asserts that the district court committed reversible error by refusing to admit “similar accident” evidence. Finally, appellant maintains that the district court erred in charging the jury on the defense of “legal accident.”

We hold that the trial court did not err in granting the JNOV. Nor do the trial judge’s comments on the evidence provide cause for reversal. Similarly, we find appellant’s third and fourth contentions to be meritless.

B. Factual and Procedural History

On January 6, 1983, appellant purchased a Trek 614 touring bicycle. Trek Bicycle Corporation (“Trek”) manufactured the bicycle, Opportunities, Incorporated (“Opportunities”) assembled the bike’s rear wheel according to Trek’s specifications, and Bicycle South, Inc. (“Bicycle South”) sold the bike to appellant. The latter three parties will be referred to collectively as “the bicycle defendants.” On February 9, 1983, appellant also purchased, from a company not a party to this lawsuit, a bicycle helmet manufactured by Skid Lid. Rather than purchase a helmet covering her entire head, appellant chose [**3] one that only covered the top half of her head, coming down to about the top of her ears.

Wilson purchased the bike and helmet for a cross-country bicycling trip from Florida to California. Eight days into her trip, on April 23, 1983, Wilson sustained head injuries in a fall from the bicycle while she was riding downhill on a two-lane Georgia highway between Plains and Americus, Georgia. Between January 6 and April 23, Wilson had ridden approximately 1200 to 1600 miles on the bicycle.

The cause of appellant’s fall is disputed by the parties. Appellant maintains that the rear wheel collapsed into a saddle-like shape as a result of an improper manufacturing process and a failure to retrue the spokes of the wheel after the rim was assembled. Under this theory, the tension in the wheel, which was not released after the rim was formed and the wheel assembled, caused the spokes to loosen after use and led to the collapse. The bicycle defendants, on the other hand, maintain that the fall did not result from the wheel collapse, but that the wheel collapsed as a result of appellant’s fall from the bike. ¹

1 The actual cause of the fall does not affect the issues currently before this Court.

[**4] The point of initial impact between Ms. Wilson’s head and the pavement was behind her left ear and below the edge of the helmet. As a result of the impact, she claims that she sustained three injuries. The first two, a basilar skull fracture and occipital scalp laceration, were not particularly serious and do not comprise the more serious damage. The more serious injury was a “contre-coup” (an injury to the opposite side of the head from the point of initial impact) brain contusion.

Alleging defects in the bicycle wheel and helmet, Ms. Wilson filed a complaint in this products liability action based upon breach of warranty, strict liability, and negligence. During the trial, appellant attempted to introduce evidence of a prior bicycle wheel defect claim brought by another party against Trek, Opportunities, and another bicycle store, alleging that the incidents were substantially similar. The trial court excluded the earlier incident.

At the beginning of his charge, the trial judge explained to the jury:

As a federal judge, I have the right, power, and duty to comment on the facts, to express my opinion with respect thereto . . . but remember, in the last analysis, every factual issue [**5] in this case must be decided by you, by you alone, and anything that anybody else in this room says [*1506] about the facts is a mere opinion, not binding upon you.

Subsequently, referring to witness testimony, the judge again emphasized that “as sole judges of the facts, you, the jury, and you only, must determine which of the witnesses you believe and what portion of their testimony you accept and what weight you attach to it.” Prior to analyzing and giving his opinion of the evidence that Ms. Wilson presented, ² the judge again cautioned the jury that “you, as jurors, are at liberty to disregard each, every, and all comments of the court in arriving at your own findings of the facts.” At the conclusion of his remarks, the trial judge further emphasized:

Let me stress as strongly as I can that you, the jury, are the sole and only judges of the facts. The past several minutes I have been giving you [**6] my opinion with respect to matters committed solely to your decision, not mine. My comments are and can only be expressions of a personal opinion and are not binding on you in any way, shape, or form. Remember that in considering every issue in this case, including those to which I have just alluded, you must resort to your own recollection of the evidence, not that which I have just stated. . . . You must, in the diligent performance of your duty, rely on your recollection of all the evidence and not merely that which I may have called to your attention and emphasized.

2 The trial judge focused especially on items of derogatory information with respect to appellant’s expert, Mr. James Green.

On April 13, 1989, the jury returned a verdict in favor of appellant against appellee Skid Lid in the amount of $ 265,000 on the helmet claim. On the bicycle wheel claim, the jury returned a verdict against appellant and in favor of the bicycle defendants.

On April 21, 1989, appellee Skid Lid moved for a judgment notwithstanding the verdict, and on May 24 the trial court entered an Order granting the motion. The court did so because it found that Ms. Wilson had “assumed the risk of injury as to parts of her body patently not covered by the helmet.”

II. DISCUSSION

A. The Helmet & the Judgment Notwithstanding the [**7] Verdict

[HN1] We review the district court’s grant of a JNOV under the same standard as the district court used in determining whether to grant a JNOV. As we stated in Castle v. Sangamo Weston, Inc., 837 F.2d 1550, 1558 (11th Cir.1988):

All of the evidence presented at trial must be considered “in the light and with all reasonable inferences most favorable to the party opposed to the motion.” A motion for judgment n.o.v. should be granted only where “reasonable [people] could not arrive at a contrary verdict. . . .” Where substantial conflicting evidence is presented such that reasonable people “in the exercise of impartial judgment might reach different conclusion, [sic]” the motion should be denied. (citations omitted)

In applying this standard for the sufficiency of evidence, we also look to Georgia substantive law to determine whether Skid Lid deserved judgment as a matter of law. See Erie v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188 (1938); Salter v. Westra, 904 F.2d 1517, 1524 (11th Cir.1990).

Defendants in products liability actions have asserted two similar defenses in attempting to steer clear of liability, assumption of the risk and the “open and obvious [**8] rule.” ³ While the trial judge in this case based the JNOV on assumption of the risk, we also address the open and obvious rule because affirmance of the JNOV is proper even if based on a different rationale. See Paisey v. Vitale, 807 F.2d 889, 890 (11th Cir.1986).

3 This rule is also known as the “patent danger rule” and has its roots in a New York decision involving negligence law, Campo v. Scofield, 301 N.Y. 468, 95 N.E.2d 802 (1950). New York later abandoned the rule in Micallef v. Miehle Co., 39 N.Y.2d 376, 384 N.Y.S.2d 115, 348 N.E.2d 571 (1976).

[*1507] We need not reach the assumption of the risk issue if the helmet was not defective because Skid Lid would have breached no duty to Ms. Wilson. We thus initially address the open and obvious rule. [HN2] The open and obvious rule states that a product is not defective if the peril from which injury could result is patent or obvious to the user. Stodghill v. Fiat-Allis Construction Machinery, Inc., 163 Ga. App. 811, 295 S.E.2d 183, 185 (1982). This determination [**9] regarding the peril is made on the basis of an objective view of the product. Weatherby v. Honda Motor Co., Ltd., 195 Ga. App. 169, 393 S.E.2d 64, 66 (1990) (certiorari denied June 21, 1990). In assessing what is obvious, it must be remembered that, contrary to the belief of some, the American public is not child-like. Stodghill is instructive in this respect. In Stodghill, the plaintiff was using a bulldozer manufactured by the defendants to clear felled trees from a construction site when a tree jumped over the bulldozer blade and struck him in the chest. The plaintiff claimed that the machine was defective because it had no protective metal cage surrounding the driver’s seat. The Georgia Court of Appeals recognized that the plaintiff “was obviously aware that the bulldozer he was operating had no protective cage and that the absence of this safety device exposed him to the danger of being injured by anything which might strike the driver’s compartment.” Id. 295 S.E.2d at 184. The court concluded that

“because the failure of the appellees in this case to install a protective cage over the driver’s seat of the bulldozer was an obvious characteristic of the machine [**10] which created no hidden peril and did not prevent the machine from functioning properly for the purpose for which it was designed, it cannot reasonably be considered a design or manufacturing defect under Georgia law.”

Id. at 185.

Similar to the absence of the protective cage on the bulldozer, it is or should be apparent to one who purchases an article of clothing or protective gear that the article can only protect that portion of the body which is covered. A person purchasing a bullet proof vest cannot realistically claim that he expected it to protect him from a bullet in the leg. Likewise, one purchasing a sleeveless t-shirt cannot protest that it should have protected him from a scrape on the arm. In the case at bar, rather than selecting a helmet covering her entire head, appellant elected to purchase a helmet that she knew covered only the top half of her head. She did know, or certainly should have known, that the helmet with less extensive coverage would not protect her from an impact to an area not covered by the helmet. Unlike a full helmet, the half-helmet was not designed to protect against impacts anywhere on the head. The extent of coverage was “an obvious characteristic [**11] of the [helmet] that created no hidden peril and did not prevent the [helmet] from functioning properly for the purpose for which it was designed.” Stodghill, 295 S.E.2d at 185. We thus find, as a matter of law, that the helmet was not defective under Georgia law. ⁴

4 We note that Georgia courts have been careful to avoid treating the American public as children where a peril is obvious or patent and the product thus not defective. In Weatherby, the five-year old plaintiff had been a passenger on an off-road motorcycle that did not have its gas cap in place. During the ride over uneven terrain, gasoline splashed from the open tank and ignited, causing burns to the plaintiff. The court found that an open fuel tank “surely suggests the possibility of spillage,” that because the fuel tank is located above the engine “gravity can be anticipated to bring the spilled fuel in contact with the engine and spark plug,” and that the dangers of spilled gasoline coming into contact with an engine are generally known. 393 S.E.2d at 67. The court consequently concluded as a matter of law that the peril of an open fuel tank resting over the engine and its spark plug was “an obvious or patent peril,” and that the product was thus not defective. Id. at 68.

[**12] Even if the failure to cover the full head were a defect, it is still beyond peradventure that appellant assumed the risk of injury to the parts of her body patently not covered by the helmet. [HN3] Under Georgia law, “‘if the user or consumer discovers the defect and is aware of the danger, but nevertheless proceeds unreasonably to make use of the product, he is [*1508] barred from recovery.'” ⁵ Center Chemical Co. v. Parzini, 234 Ga. 868, 870, 218 S.E.2d 580 (1975) (citation omitted). The first part of the test, actual knowledge of the defect and danger, is fulfilled because appellant had subjective knowledge that the helmet she purchased only covered a portion of her head. Had appellant, somehow, been unaware that the helmet only partially covered her head, the result might be different. As counsel for appellant admitted at oral argument, however, there is no evidence that she thought the helmet covered more of her head than it did cover, or that she believed it would protect her from injury to parts of her body not covered. Nor do we find, after our careful review of the transcript, any testimony to that effect. As for the second portion of the test, unreasonable use, it seems axiomatic [**13] to say that it is unreasonable to use a helmet to protect a portion of the body that the helmet clearly does not cover.

5 This test, in contrast to the open and obvious rule, looks to the subjective perceptions of the user or injured party. Another difference between assumption of the risk and the open and obvious rule is that while the latter places the burden of proof on the plaintiff, the former places it on the defendant. Weatherby, 393 S.E.2d at 66. See also Annotation, Products Liability: modern status of rule that there is no liability for patent or obvious dangers, 35 A.L.R. 4th 861, 865 (1985) (discussing open and obvious rule and the differences from assumption of the risk).

In sum, the district judge properly granted appellee Skid Lid’s motion for a JNOV.

B. Comments on the Evidence

At the close of the case, the district judge employed the time-honored, though little used, right and duty of a federal trial judge to comment on the evidence. As the Supreme Court stated in Quercia v. United [**14] States, 289 U.S. 466, 469, 53 S. Ct. 698, 698-99, 77 L. Ed. 1321 (1932):

[HN4] In a trial by jury in a federal court, the judge is not a mere moderator, but is the governor of the trial for the purpose of assuring its proper conduct and of determining questions of law. (citation omitted) In charging the jury, the trial judge is not limited to instructions of an abstract sort. It is within his province, whenever he thinks it necessary, to assist the jury in arriving at a just conclusion by explaining and commenting upon the evidence, by drawing their attention to the parts of it which he thinks important; and he may express his opinion upon the facts, provided he makes it clear to the jury that all matters of fact are submitted to their determination. (citations omitted) Sir Matthew Hale thus described the function of the trial judge at common law: “Herein he is able, in matters of law emerging upon the evidence, to direct them; and also, in matters of fact to give them a great light and assistance by his weighing the evidence before them, and observing where the question and knot of the business lies, and by showing them his opinion even in matters of fact; which is a great advantage and [**15] light to laymen. (citation omitted)

[HN5]

The trial judge will not be reversed unless his comments “excite a prejudice which would preclude a fair and dispassionate consideration of the evidence.” Id. at 472, 53 S. Ct. at 700. See also United States v. Hope, 714 F.2d 1084, 1088 (11th Cir.1983) (“[a] trial judge may comment upon the evidence as long as he instructs the jury that it is the sole judge of the facts and that it is not bound by his comments and as long as the comments are not so highly prejudicial that an instruction to that effect cannot cure the error”). ⁶ It is only where [*1509] this prejudice exists that the substantial rights of the parties are affected and Fed.R.Civ.P. 61 permits disturbing a judgment. ⁷ In assessing whether this prejudice exists and has affected the parties’ substantial rights, we consider the record as a whole and not merely isolated remarks. See Newman v. A.E. Staley Mfg. Co., 648 F.2d 330, 334-335 (5th Cir. Unit B June 1981). “The test is not whether the charge was faultless in every particular but whether the jury was misled in any way and whether it had understanding of the issues and its duty to determine those issues.” Bass v. International [**16] Bhd. of Boilermakers, 630 F.2d 1058, 1065 (5th Cir.1980) (citations omitted).

6 Other circuits have adopted similar language regarding a trial judge’s right to comment on the evidence. See, e.g., White v. City of Norwalk, 900 F.2d 1421 (9th Cir.1990); Johnson v. Helmerich & Payne, Inc., 892 F.2d 422 (5th Cir.1990); Vaughn v. Willis, 853 F.2d 1372 (7th Cir.1988); United States v. Munz, 542 F.2d 1382 (10th Cir.1976), cert. denied, 429 U.S. 1104, 97 S. Ct. 1133, 51 L. Ed. 2d 555 (1977); Mihalic v. Texaco, Inc., 377 F.2d 978 (3d Cir.1967); Meadows v. United States, 144 F.2d 751 (4th Cir.1944); A number of practitioners and commentators have also assessed the role of the judge in a jury trial. See, e.g., Bancroft, Jury Instructions, Communications, Juror Substitutions and Special/Partial Verdicts: Selected Topics — The Principal Law, 340 Prac.L.Inst. 611 (1987); Loeffler, Project — Seventeenth Annual Review of Criminal Procedure: United States Supreme Court and Courts of Appeals 1986-1987 (III. Trial: Authority of the Trial Judge), 76 Geo.L.J. 986 (1988); Murphy, Errors in the Charge, 14 Litig. 39 (1988).

[**17]

7 [HN6] Fed.R.Civ.P. 61 provides in part:

“No error . . . is ground for granting a new trial . . . unless refusal to take such action appears to the court inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.”

Appellants allege that the district judge went too far in commenting on the evidence and on the testimony of their expert, Mr. Green. We do not doubt that a trial judge could misuse his authority. ⁸ After careful review of the record, however, while we are not prepared in this case to suggest the outside limits on a trial judge’s comments, we are satisfied that the district judge here did not overstep his bounds. As recounted in Part I.B. of this opinion, he went to great lengths to assure that the jury understood that it was the sole fact-finder in the case. ⁹ When his remarks are considered in their entirety, on the facts of this case we find no prejudice affecting the substantial rights of the parties.

8 Perhaps one of the best examples of a jury charge that would constitute an abuse of authority today, but was permitted prior to Quercia, is Judge Emory Speer’s eight and one-half hour, 92 page charge in United States v. Greene, 146 F. 803 (S.D.Ga.1906), cert. denied, 207 U.S. 596, 28 S. Ct. 261, 52 L. Ed. 357 (1907). In testimony before a congressional committee looking into the possibility of impeaching Judge Speer, Alexander Lawrence (one of Greene’s defense attorneys) characterized the judge and his charge as follows:

He knows the jury, knows how to play on their passions, on their prejudices, as no living man that I have seen could do it; he has a faculty for marshalling evidence that I have never seen another living man able to marshal; and in that Greene & Gaynor case he charged that jury for eight hours and I will challenge any six prosecuting attorneys in the United States, from the Attorney General down, all of them together, to take that mass of testimony taking three months’ time that Judge Speer heard, and then put it down in as ingenious an argument against the defense as Judge Speer put it in that thing. It was a masterpiece of oratory, but a very poor thing when you come down to look at it from a judicial standpoint.

H. Res. 234, 63rd Cong., 2d Sess. (1914) (Minority Report of Representative Volstead).

Since, Quercia, many appeals courts have overturned cases where the trial judge has gone too far. See, e.g., Bentley v. Stromberg-Carlson Corp., 638 F.2d 9, 11 (2d Cir.1981) (trial judge’s comments to the jury gave all the arguments for the defendant, being “tantamount to directing a verdict” for defendant); McCullough v. Beech Aircraft Corp., 587 F.2d 754, 761 (5th Cir.1979) (trial judge’s mistaken assertions virtually destroyed appellant’s circumstantial case, requiring reversal); Maheu v. Hughes Tool Co., 569 F.2d 459, 471-472 (9th Cir.1978) (trial judge’s comments amounted to “personal character reference” for witness and thus “went too far”).

[**18]

9 It seems that the jurors responded to the trial judge’s direction that they were the sole fact-finders. The judge brought to their attention that appellant’s expert had been prepared to testify that the helmet was defective because of one set of facts and then shifted his reasoning when that set of facts was disproven; nevertheless, the jury still awarded appellant $ 265,000 against the helmet manufacturer.

In the course of his remarks, appellant also contends that the trial judge improperly restricted her case to the testimony of her one expert, Mr. Green. In stressing the importance of Mr. Green’s testimony to appellant’s case, the judge stated as follows:

In this case, as in every case, there are the two big main issues: one, liability, and, two, the amount of any damages proximately flowing therefrom. The plaintiff has the burden of proving each and every element of the plaintiff’s case. The plaintiff’s entire case here, and in meeting the elements which must be proved, rests upon the expert testimony, [*1510] that is, the expert opinion, of Mr. Green. Except for Mr. Green’s testimony, the plaintiff [**19] has not made out a case of liability. With Mr. Green’s testimony, the plaintiff has made out a legal case on liability; therefore, the court suggests that the first, immediate, and crucial issue in the case for you to determine is the credibility or the believability of Mr. Green.

After studying the record, we find no merit in appellant’s contention. We are inclined to agree with the trial judge that, without Mr. Green, the case would not have been one for the jury.

In sum, we find that on the facts of this case the trial judge’s comments to the jury, when taken as a whole, neither excited a prejudice affecting the substantial rights of the parties nor incorrectly instructed the jury.

C. The Allegedly Similar Accident

Appellant argues that the trial court erred by refusing to admit evidence of the collapse of another wheel manufactured by appellees Trek and Opportunity. Appellant sought to show appellees’ notice of a defect in the wheel, the magnitude of the danger, appellees’ ability to correct a known defect, the lack of safety for intended purposes, the strength of the product, the standard of care, and causation.

The trial judge denied the proffer on the grounds that the evidence [**20] was not probative because of the necessity for a considerable amount of extrinsic evidence to determine whether the incidents were sufficiently similar to meet the standards of Fed.R.Evid. 403. ¹⁰ [HN7] A trial judge has broad discretion over the admission of evidence, Borden, Inc. v. Florida East Coast Ry. Co., 772 F.2d 750, 754 (11th Cir.1985), and we find that the district judge did not abuse his discretion. ¹¹

10 The cause of the alleged similar incident had never been established because that case settled out of court. The parties in the instant case vigorously dispute the actual cause, demonstrating that even had the trial court reached the issue of whether the two incidents were similar this issue would have required a trial within a trial.

11 Because of our disposition of this issue, we need not reach the question of whether the two incidents were actually similar, and if so, whether the prior incident would have been properly excluded under Fed.R.Evid. 403.

D. The Charge on “Legal Accident”

In his [**21] instructions to the jury, the judge included a charge on “legal accident.” ¹² To determine whether such a charge is appropriate, we first look to Georgia substantive law. See Erie v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188 (1938); McCullough v. Beech Aircraft Corp., 587 F.2d 754, 759 (5th Cir.1979). [HN8] Georgia law permits a charge on “legal accident” where there is evidence in the record authorizing a finding that the occurrence was an “accident.” ¹³ Chadwick v. Miller, 169 Ga. App. 338, 344, 312 [*1511] S.E.2d 835, 840 (1983). ¹⁴ Where appropriate, the charge is valid in a products liability case. Kemp v. Bell-View, Inc., 179 Ga. App. 577, 579, 346 S.E.2d 923, 926 (1986).

12 This portion of the charge reads as follows:

Now, let me tell you that the mere fact that an accident happened or an occurrence happened from which injury stemmed standing alone does not permit a jury to draw any inference that the occurrence was caused by anyone’s negligence or by any defect.

Now, I have used the word “accident” loosely, as I think is commonly the practice, is interchangeable with the word occurrence producing injury, but in Georgia law accidental injury means, in connection with personal injury actions such as this, any injury which occurs without being caused by the negligence either of the plaintiff or of the defendants. The idea of accident removes responsibility for the cause of the injury if found to have occurred by reason of a legal accident as defined under Georgia law, that is, one which is caused by the negligence neither of the plaintiff or the defendants.

It is necessary that you find from a preponderance of the evidence in this case, in order to find for the plaintiff, that the occurrence and/or resulting injuries were the result of defect and/or negligence and/or breach of warranty to the exclusion of legal accident, as I have defined that term to you, because the plaintiff has the burden of proof, as I will charge you later, to demonstrate by a preponderance of the evidence that the occurrence did, in fact, result from defect and/or negligence and/or breach of warranty, to the exclusion of legal accident.

[**22]

13 [HN9] “Accident” is defined as “an occurrence which takes place in the absence of negligence and for which no one would be liable.” Chadwick, 169 Ga. App. at 344, 312 S.E.2d 835.

14 Appellant cites Seaboard Coastline R.R. Co. v. Delahunt, 179 Ga. App. 647, 347 S.E.2d 627 (1986), for the proposition that a charge on “legal accident” can be given only where there is no evidence of negligence on the part of either party. The Georgia Court of Appeals recognized in Stiltjes v. Ridco Exterminating Co., 192 Ga. App. 778, 386 S.E.2d 696, 697 (1989), however, that Delahunt had misstated the law in Georgia.

Because the manner of giving jury instructions is procedural rather than substantive, it is governed by federal rather than state law. McCullough, 587 F.2d at 759. In reviewing alleged errors in jury instructions, we must determine whether the trial court’s charge, considered as a whole, “sufficiently instructs the jury so that the jurors understand the issues involved and are not misled.” Mark Seitman & Assocs., Inc. v. R.J. Reynolds Tobacco Co., 837 F.2d 1527, 1531 (11th [**23] Cir.1988) (citation omitted). We will only reverse if we are left with “a substantial and ineradicable doubt as to whether the jury was properly guided in its deliberations.” Id. (citation omitted).

After careful review, we find evidence in the record that supports a charge on legal accident as defined by Georgia law. We are therefore satisfied that the district judge properly guided the jury with respect to this issue.

III. CONCLUSION

For the foregoing reasons, we AFFIRM the judgment of the district court.

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Daniels v. Virginia College at Jackson; 478 Fed. Appx. 892; 2012 U.S. App. LEXIS 13037

Natifracuria, Plaintiff-Appellant, Virginia College L.L.C.; Education Corporation of America; Willis-Stein and Partners, Defendants-Appellees,

No. 11-60861 Summary Calendar

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

June 26, 2012, Filed

NOTICE: PLEASE REFER TO FEDERAL RULES OF APPELLATE PROCEDURE RULE 32.1 GOVERNING THE CITATION TO UNPUBLISHED OPINIONS.

PRIOR HISTORY: [**1]

Appeal from the United States District Court for the Southern District of Mississippi. USDC No. 3:11-CV-496.

DISPOSITION: The district court’s judgment is AFFIRMED.

COUNSEL: For NATIFRACURIA DANIELS, Plaintiff – Appellant: Precious Tyrone Martin, Sr., Esq., Precious Martin, Sr. & Associates, P.L.L.C., Jackson, MS.

For VIRGINIA COLLEGE, L.L.C., EDUCATION CORPORATION OF AMERICA, Defendants – Appellees: Ollie Ancil Cleveland, III, Esq., Peter Sean Fruin, Attorney, Maynard, Cooper & Gale, P.C. Birmingham, AL.

For WILLIS-STEIN AND PARTNERS, Defendant – Appellee: Robert Lewis Gibbs, Esq., Gibbs Whitwell, P.L.L.C., Jackson, MS.

JUDGES: Before REAVLEY, SMITH, and PRADO, Circuit Judges.

OPINION

[*893] PER CURIAM:^*

* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.

Plaintiff-Appellant Natifracuria Daniels appeals the district court’s order compelling arbitration of her state-law tort and restitution claims against Defendants-Appellees Virginia College at Jackson, Virginia College, L.L.C., Education Corporation of America, and Willis-Stein and Partners (collectively “Virginia College”). Virginia College moved [**2] to compel arbitration in order to enforce an arbitration clause in the “Enrollment and Tuition Agreement,” which Daniels signed before enrolling as a student at Defendant Virginia College at Jackson (individually, “the College”). On appeal, Daniels contends that the Agreement’s arbitration clause does not cover her tort claims, and she contends that the arbitration clause is unconscionable.

We AFFIRM.

The Enrollment Agreement’s arbitration clause requires arbitration of any claim “arising out of or relating to [the Agreement], together will all other claims . . . of any nature whatsoever arising out of or in relation to [Daniels's] enrollment and participation in courses at the College . . . .” Daniels alleges that the College unlawfully retained the portion of her federal financial aid monies that should have been disbursed to Daniels to cover her cost of living. She brings state-law claims sounding in negligence, conversion, embezzlement, and unjust enrichment. Because these claims arose “in relation to [Daniels's] enrollment and participation in courses at the College,” the district court was correct in finding them subject to the arbitration clause.

[HN1] Under Mississippi law,¹ substantive [**3] unconscionability “is proven by oppressive contract terms such that there is a one-sided agreement whereby one party is deprived of all the benefits of the agreement or left without a remedy for another party’s nonperformance or breach.” Covenant Health and Rehab. of Picayune, LP v. Estate of Moulds, 14 So. 3d 695, 699-700 (Miss. 2009) (internal citation and quotation marks omitted). In Covenant Health, the Mississippi Supreme Court found that a contract containing an arbitration clause “coupled with a multitude of unconscionable provisions,” including asymmetrical limitations on liability, choice of forum, and other matters, was unenforceable in its entirety. Id. at 703. Daniels argues that the Enrollment Agreement is similarly laden with unconscionable provisions.

1 The Enrollment Agreement has an Alabama choice-of-law provision. But no party raises this provision, and they have relied on Mississippi law throughout their briefing on appeal and before the district court.

First, there is language in the arbitration clause that allows the College, but not Daniels, to seek injunctive relief in court. [HN2] An agreement that requires only one party to submit its claims to arbitration is unconscionable [**4] under Mississippi law,² but the language at issue here merely allows the College to seek a preliminary injunction to halt a student’s ongoing breach of the Enrollment Agreement. The College must seek all other relief though arbitration. An asymmetric exception so limited in scope does not make an arbitration clause unconscionable. Sawyers v. Herrin-Gear Chev. Co., 26 So. 3d 1026, 1035 (Miss. 2010) (arbitration clause between car dealer and purchaser enforceable notwithstanding exception allowing car dealer to bring an action to repossess the car in court).

2 Covenant Health, 14 So. 3d at 700 (citing Pridgen v. Green Tree Fin. Servicing Corp., 88 F. Supp. 2d 655, 658 (S.D. Miss. 2000)).

[*894] Daniels also points to the arbitration clause’s language prohibiting the arbitrator from awarding any damages not “measured by the prevailing party’s actual compensatory damages.” [HN3] Ostensibly bilateral limitations on punitive damages are unconscionable under Mississippi law if they are one-sided in practical effect due to the weaker party’s being “much more likely to be justified in seeking punitive damages.” Vicksburg Partners, L.P. v. Stephens, 911 So.2d 507, 523-24 (Miss 2005) (ostensibly bilateral punitive-damages [**5] limitation in contract of adhesion between nursing home and occupant unenforceable against occupant), overruled on other grounds by Covenant Health, 14 So. 3d at 706 (Miss. 2009). However, as Virginia College concedes in its brief, the arbitration clause does not bar the arbitrator from awarding damages in excess of compensatory damages. It merely requires that the amount of such damages be based on the prevailing party’s compensatory damages. Sawyers, 26 So. 3d at 1036 (interpreting nearly identical language as requiring only that the parties be “limited as to the amount of punitive damages which might be awarded, since such an award would have to be ‘measured by the prevailing party’s actual damages'”). Such provisions are not unconscionable. Id.

Daniels next points to the Enrollment Agreement’s asymmetric liquidated damages provision, which she contends would leave her without any remedy for the wrongs she alleges because its language limits her recovery to “an amount equal to any non-refunded tuition payments . . . .” [HN4] Contractual provisions intended to exculpate a party of liability for its own tortious conduct are particularly suspect under Mississippi law. See Turnbough v. Ladner, 754 So.2d 467, 469 (Miss. 1999)). [**6] As Virginia College concedes, however, the liquidated damages provision in the Enrollment Agreement applies only to breach-of-contract damages, and would not affect recovery for Daniels’s claims.

Finally, a provision of the agreement permits the college to recover attorney’s fees against Daniels if it prevails in any action or arbitration that is “permitted” by the Enrollment Agreement or that “aris[es] out of [the Agreement] and the subject matter contained [there]in.” However, while the Enrollment Agreement is silent with respect to Daniels’s recovering fees if she prevails, Virginia College disavows any interpretation of it that would preclude Daniels from recovering attorneys’ fees to which she might otherwise be entitled under the arbitration rules. Given Virginia College’s concessions regarding the meaning of its provisions, enforcing the Enrollment Agreement’s arbitration clause is not unconscionable under Mississippi law.

The district court’s judgment is AFFIRMED.

Magazine v. Royal Caribbean Cruises, LTD., 2014 U.S. Dist. LEXIS 41092

Mary Magazine, Plaintiff, v. Royal Caribbean Cruises, LTD. d/b/a Royal Caribbean International, Defendant.

CASE NO. 12-23431-CIV-SEITZ/SIMONTON

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA

2014 U.S. Dist. LEXIS 41092

March 27, 2014, Decided

March 27, 2014, Filed

CORE TERMS: instructor, rope, warning, balancing, summary judgment, negligently, warn, lesson, duty to warn, passenger, falling, video, reasonable care, proximately, proximate, cruise, notice, ride, risk of injury, breached, surface, dangerous condition, serious bodily injury, unreasonably, contributed, failure to warn, nonmoving, aboard, warned, ship

COUNSEL: [*1] For MARY MAGAZINE, Plaintiff: Kate S. Goodsell, LEAD ATTORNEY, Michael Charles Black, Cassidy & Black, P.A., Miami, FL.

For Royal Caribbean Cruises, Ltd., doing business as Royal Caribbean International, Defendant: Bryan Edward Probst, LEAD ATTORNEY, Royal Caribbean Cruises, Ltd., Miami, FL; Curtis Jay Mase, LEAD ATTORNEY, Mase, Lara, Eversole PA, Miami, FL; Jennifer Nicole Hernandez, Mase Lara Eversole, P.A., Miami, FL; Lauren E DeFabio, Mase Lara Eversole, Miami, FL.

JUDGES: PATRICIA A. SEITZ, UNITED STATES DISTRICT JUDGE.

OPINION BY: PATRICIA A. SEITZ

OPINION

ORDER ON SUMMARY JUDGMENT

THIS MATTER is before the Court on Defendant’s Motion for Final Summary Judgment [DE-41]. This action arises from a broken leg suffered during a private lesson on the FlowRider, a surfing simulator aboard one of Defendant Royal Caribbean Cruises, Ltd. (“RCL”)’s cruise ships. The essence of Plaintiff Mary Magazine’s single-count complaint is that RCL failed to follow its own procedures and thus negligently increased the risk of Magazine’s injury, principally by failing to warn her of the risk of injury on the FlowRider and by negligently instructing her in its use.

Having considered the motion, the response [DE-48] and reply [DE-52] [*2] thereto, the oral argument of counsel on March 20, 2014, and all of the evidence in the light most favorable to the Plaintiff, the Court will grant the motion as to the allegations that RCL caused an unreasonably dangerous condition under the circumstances, negligently designed and maintained the FlowRider, and negligently failed to warn of the risk of injury therefrom. It will deny the motion as to the allegation that RCL negligently instructed Magazine in the use of the FlowRider, as the Parties’ papers have not addressed Magazine’s counsel’s argument at the March 20, 2014 hearing that the instructors’ hand-off of the balancing rope contributed to the risk of Magazine’s injury.

I. Factual Background

On September 18, 2011, Plaintiff Mary Magazine, a 59-year-old attorney and Miami, Florida resident, departed on a Card Player Cruise aboard the Allure of the Seas, one of RCL’s cruise ships. The FlowRider is a surfing simulator, installed on the Allure of the Seas and other RCL vessels, that uses powerful jets of water to create a continuous, artificial wave on which participants try to surf or ride using either a bodyboard or a surfboard (or “flowboard”). Unlike ocean waves, the FlowRider’s [*3] artificial wave consists of only 1 – 3 inches of water above a “stationary, tensioned vinyl matted fabric surface” above a “rigid or fiberglass or PVC subsurface.” (“Express Assumption of Risk – Waiver & Release of Liability – FlowRider Onboard Activity Waiver – General Terms & Conditions” [DE-41-3] (“FlowRider Waiver”) at 2.)

Almost 2 weeks earlier, on September 6, 2011, Magazine had electronically registered to participate in various activities on the cruise, including ice skating, rock climbing, zip lining, and the FlowRider. As part of the registration process, Magazine checked boxes for each activity and electronically signed the FlowRider Waiver.¹ She knew at the time that checking boxes meant “signing something,” which may have included warnings, but does not recall seeing any of the content of the FlowRider Waiver. She did not take additional steps at the time to research any of the activities. Once aboard the ship, she signed up for a FlowRider lesson. Because she was taking a lesson, and because she had previously participated in numerous sports without injury, she did not expect to be injured on the FlowRider. (FlowRider Waiver; Dep. of Mary Magazine [DE-41-2] (“Magazine [*4] Dep.”) 44:1 – 53:4, 69:17 – 22, 122:15 – 123:1.)

1 The parties agree that the FlowRider Waiver is unenforceable under Johnson v. Royal Caribbean Cruises, Ltd., 449 F. App’x 846 (11th Cir. 2011).

RCL contends that it warns its passengers of the risks associated with the use of the FlowRider in several ways, all of which Magazine testifies she did not see before her accident. These include the FlowRider Waiver, a “Caution” sign in a viewing area near the FlowRider entrance, a 5-minute safety video that plays on certain television channels in the guests’ staterooms, and a 8.5″ x 11″ sheet on a bulletin board.

On September 20, 2011, Magazine and two other passengers participated in a private FlowRider lesson, which cost $60 per person. One of the instructors asked Magazine about the knee brace she was wearing, and she responded that she’d had a knee replacement and used a brace “just for stability purposes.” Neither instructor said anything further about her knee. (Magazine Dep. 76:17 – 78:6.) There is no evidence that any instructor at this time warned Magazine of any risks associated with the FlowRider or inquired as to her understanding of those risks.

During the lesson, Magazine received [*5] verbal instructions from two RCL FlowRider instructors, though she does not remember the instructions in detail. She first watched another member of her group practice balancing on the board while receiving instruction, lose his balance, fall to the back of the FlowRider, and return to wait in line to ride again. Then, on Magazine’s turn, an instructor initially held her hand while she practiced standing on and maneuvering the flowboard. She was barefoot at this time and throughout the lesson. The instructor then let go of her hand, and Magazine tried to maintain her balance on her own until she fell and was carried by the water to the back of the FlowRider. She returned to wait in line to ride again, ultimately falling and returning to practice riding the FlowRider a total of approximately 10 to 12 times. (See Magazine Dep. 78:10 – 81:3; Dep. of 30(b)(6) representative of RCL, Alison Frazier [DE-42-1] (“RCL Dep.”) 68:3 – 69:8; Pl.’s Notice of Serving Answers to Interrog. [DE-41-1] (“Pl. Interrog.”) ¶ 8.)

After several rides, once the instructor seemed to think Magazine could balance without assistance, the instructors started using a balancing rope. One instructor would give her a [*6] rope, held by a second instructor standing near the front of the FlowRider, to hold with her right hand, while the first instructor held her left hand. Eventually the first instructor would let go of Magazine’s left hand, and the second instructor would guide her with the rope towards the front and middle of the FlowRider, where the water flow was stronger than it had been further back and on the side. It is unclear how many times Magazine practiced with the balancing rope in this way before her injury. (See Magazine Dep. 108:16 – 109:12; Pl. Interrog. ¶ 8.)

During Magazine’s last ride, she was holding the rope while the second instructor guided her to the front and middle of the FlowRider as described above. The video of her accident ² shows that the second instructor, who had initially been holding the rope, handed the rope to the first instructor. Soon thereafter, Magazine lost her balance and fell backwards into the water. Her legs separated and she lost control of the flowboard. Her fall resulted in a spiral fracture in her femur and ultimately in permanent nerve damage, numbness, tingling, and a pronounced limp. (See Magazine Dep. 112:7 – 119:8; Pl. Interrog. ¶¶ 8, 10; Dep. of [*7] Kevin Breen [DE-44-1] (“Breen Dep.”) 80:8 – 81:23; Def’s Mot. for Final Summ. J. [DE-41] (“SJ Mot.”) at 7 ¶ 27; Pl.’s Resp. in Opp’n to Def.’s Mot. for Final Summ. J. [DE-48] (“Response”) at 8 ¶ 27.)

2 The video of Magazine’s accident was not part of the summary judgment record, but the testimony in the record refers frequently to this video. (See, e.g., Magazine Dep. 23:17 – 19.) Thus, the Court asked the Parties to provide it to the Court at the March 20, 2014 hearing.

II. Legal Standard

General maritime law controls the present action, as it involves an alleged tort committed aboard a ship in navigable waters. Therefore, the elements of negligence are: “(1) the defendant had a duty to protect the plaintiff from a particular injury; (2) the defendant breached that duty; (3) the breach actually and proximately caused the plaintiff’s injury; and (4) the plaintiff suffered actual harm.” Chaparro v. Carnival Corp., 693 F.3d 1333, 1336 (11th Cir. 2012) (citing Zivojinovich v. Barner, 525 F.3d 1059, 1067 (11th Cir. 2008)). In the maritime context, “a shipowner owes the duty of exercising reasonable care towards those lawfully aboard the vessel who are not members of the crew.” Id. (quoting [*8] Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 630, 79 S. Ct. 406, 3 L. Ed. 2d 550 (1959)).

“Summary judgment is appropriate only when, after viewing the evidence and all reasonable inferences drawn from it in the light most favorable to the nonmoving party, the court nonetheless concludes that no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. The moving party carries the initial burden of production, which can be met by showing that the nonmoving plaintiff has failed to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Fickling v. United States, 507 F.3d 1302, 1304 (11th Cir. 2007) (citations omitted).

Once the moving party’s burden is met, the nonmoving party, having had the opportunity to conduct full discovery, must demonstrate that there is factual support for each element necessary to establish each claim it wishes to pursue at trial. If the nonmoving party cannot do so, then summary judgment is proper because “a complete failure of proof concerning an essential element of the nonmoving party’s case necessarily renders all other [*9] facts immaterial.” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986).

III. Analysis

Magazine alleges that RCL breached its duty of care in five ways: (1) by causing an “unreasonably dangerous condition” on the FlowRider; (2) by negligently maintaining and (3) negligently designing the FlowRider; (4) by failing to warn her of the risk of injury; and (5) by negligently supervising and instructing ³ her in its use.

3 Although the Complaint alleges that RCL “negligently supervised” Magazine, the Parties now characterize this claim as “negligent supervision and instruction.” (SJ Mot. at 16; Response at 25.) There is no evidence that RCL inadequately supervised or trained its instructors; rather, Magazine argues that RCL’s instructors were negligent towards her during her FlowRider lesson. As such, the claim is more accurately described as negligent instruction.

As to the claims of negligent design and negligent maintenance, Magazine’s counsel conceded at the March 20, 2014 hearing that RCL did not design the FlowRider and that there is no evidence of negligent maintenance. (See also SJ Mot. at 9 ¶¶ 34 – 37; Response at 10 ¶¶ 34 – 37.) To be liable for negligent design, a defendant must have [*10] played some role in the design. See Rodgers v. Costa Crociere, S.P.A., 410 F. App’x 210, 212 (2010) (affirming summary judgment for defendant where there was no evidence that defendant had actually designed the relevant area). Therefore, summary judgment is proper as to the claims of negligent design and negligent maintenance.

Magazine’s counsel also argued at the hearing that RCL’s “caus[ing] an unreasonably dangerous condition” was an independent theory of negligence. However, there is no evidence in the record supporting the existence of any such “unreasonably dangerous condition” that is distinct from the allegations of RCL’s failure to warn, negligent design, negligent maintenance, and negligent instruction. Therefore, summary judgment is proper as to a separate claim that RCL caused an unreasonably dangerous condition under the circumstances.

The Court now turns to the remaining theories of negligence: that RCL failed to warn Magazine of the FlowRider’s risks and negligently instructed her in its use.

A. RCL’s Duty to Warn

A shipowner’s duty of reasonable care includes a duty to warn passengers of dangers of which the shipowner knows or should know but which may not be apparent to [*11] a reasonable passenger. Cohen v. Carnival Corp., 945 F. Supp. 2d 1351, 1357 (S.D. Fla. 2013). The duty to warn does not extend to dangers that are “open and obvious.” Id. “The obviousness of a danger and adequacy of a warning are determined by a ‘reasonable person’ standard, rather than on each particular plaintiff’s subjective appreciation of the danger. Individual subjective perceptions of the injured party are irrelevant in the determination of whether a duty to warn existed.” John Morrell & Co. v. Royal Caribbean Cruises, Ltd., 534 F. Supp. 2d 1345, 1351 (S.D. Fla. 2008) (citations omitted).⁴

4 See also Restatement (Third) of Torts: Phys. & Emot. Harm § 18, cmt. f (2010):

[T]here generally is no obligation to warn of a hazard that should be appreciated by persons whose intelligence and experience are within the normal range. When the risk involved in the defendant’s conduct is encountered by many persons, it may be foreseeable that some fraction of them will be lacking the intelligence or the experience needed to appreciate the risk. But to require warnings for the sake of such persons would produce such a profusion of warnings as to devalue those warnings serving a more important [*12] function.

RCL maintains that it reasonably warned Magazine multiple times of the risks posed by the FlowRider. (SJ Mot. at 11 – 14.) RCL points to the FlowRider waiver, a “Caution” sign, a 5-minute safety video that plays on certain television channels in the guests’ staterooms, and a 8.5″ x 11″ sheet on a bulletin board.

“Whether adequate efforts were made to communicate a warning to the ultimate user and whether the warning if communicated was adequate are uniformly held questions for the jury.” Stapleton v. Kawasaki Heavy Indus., Ltd., 608 F.2d 571, 573 (5th Cir. 1979), modified on other grounds, 612 F.2d 905 (5th Cir. 1980). At summary judgment, the Court must accept Magazine’s testimony that she did not see any of these warnings.

Instead, as detailed below, the dispositive issues are (1) proximate causation and (2) the lack of duty to warn of open and obvious dangers. RCL has two arguments about these issues. First, any alleged failure to warn was not the proximate cause of Magazine’s injury because she “testified that she would not have heeded warnings anyway.” (SJ Mot. at 14.) Second, “the risk of falling and suffering an injury on the FlowRider is surely open and obvious under [*13] the facts of this case.” (Id. at 15 – 16.)

1. Applicable Law

In any negligence claim, the plaintiff must show that the defendant’s breach of duty actually and proximately caused the plaintiff’s injury. Hercules Carriers, Inc. v. Claimant State of Florida, 768 F.2d 1558, 1566 (11th Cir. 1985) (“[F]ault in the abstract is not sufficient. To produce liability, the acts of negligence . . . must be a contributory and proximate cause of the accident.”). This requires that the defendant’s breach “be a substantial factor in bringing about the harm.” Chavez v. Noble Drilling Corp., 567 F.2d 287, 289 (5th Cir. 1978). Thus, to prove that a defendant’s failure to warn caused an injury, the plaintiff must show that the risk about which the defendant failed to warn the plaintiff caused the injury.

In addition, as noted above, a defendant has no duty to warn a plaintiff about dangers that are open and obvious.⁵ Therefore, to prevail on a negligence claim predicated on a defendant’s failure to warn, a plaintiff must identify a specific risk (1) of which the defendant had notice or constructive notice, (2) that is not open and obvious, (3) about which the defendant failed to warn the plaintiff, and (4) [*14] that actually caused the plaintiff’s injury. See, e.g., Chaparro v. Carnival Corp., 693 F.3d 1333, 1336 (11th Cir. 2012) (plaintiffs had adequately stated claim that cruise line breached its duty to warn plaintiffs about the high prevalence of gang-related violence in Coki Beach that caused one plaintiff’s death). As neither party identifies the relevant risk with adequate specificity in their written or oral arguments, the Court must glean the types of potentially relevant risks from the Parties’ papers and the record. For the reasons stated below, the Court finds no evidentiary support for a reasonable jury to conclude that any risk exists in this case that meets all four criteria essential to a negligent-failure-to-warn claim.

5 The lack of a duty to warn of open and obvious dangers is related to the requirement of proximate causation because “warning of an obvious or generally known risk in most instances will not provide an effective additional measure of safety,” particularly as such warnings “may be ignored by users and consumers and can diminish the significance of warnings about non-obvious, not-generally-known risks.” Veliz v. Rental Serv. Corp. USA, Inc., 313 F. Supp. 2d 1317, 1323 (M.D. Fla. 2003) [*15] (citation omitted).

2. Identifying the Relevant Risk

a. Risk of Falling on the FlowRider

The relevant risk is not simply that one might fall on the FlowRider, as RCL appears to argue at times. (See, e.g., SJ Mot. at 16 (“Plaintiff’s expert and Carnival’s [sic] expert both agreed that falling on the FlowRider is an obvious risk.”).) A reasonable jury could conclude that a first-time participant is virtually guaranteed to fall on the FlowRider.⁶ However, a fall that results in a spiral fracture and permanent nerve damage is not in the same category as the 10 – 12 earlier falls that Magazine described as “actually kind of fun.” (Magazine Dep. 107:13.) In fact, RCL’s own expert stated that Magazine’s injury resulted from “nuances of how she fell on this occasion, and not the fact that she just fell.” (Expert Report of K. Breen [DE-43-2] at 7.)

6 In fact, RCL’s website advertises the opportunity to “cheer on friends from stadium seating with prime wipeout views” of the FlowRider, suggesting that RCL considers falling to be part of its appeal. Things to do onboard, Royal Caribbean International, http://www.royalcaribbean.com/findacruise/experiencetypes/category.do?pagename=onboard_cat_things_to_do [*16] (last visited Mar. 24, 2014).

b. Risk of Serious Bodily Injury or Death

Instead, the relevant risk is the general risk of serious bodily injury or death on the FlowRider. In the circumstances of this case, this is the same risk as what RCL characterizes as “the risk of falling and suffering an injury on the FlowRider” (SJ Mot. at 15 (emphasis added)) and what Magazine describes as “that there was a chance that she would get hurt while participating in the FlowRider” (Response at 9 ¶ 30). Having identified the relevant risk, the Court finds that summary judgment is proper here for two reasons.

First, any failure by RCL to warn of this general risk did not proximately cause Magazine’s injury. Magazine expressly testified that a warning sign referring only to a “risk of serious bodily injury or death” would not have stopped her from participating in the FlowRider (Magazine Dep. 111:22 – 112:2), and there is no indication in the record that such a warning might have reduced the severity of her injury. Therefore, any breach by RCL of a duty to warn Magazine of the risk of serious bodily injury or death did not proximately cause Magazine’s injury.

Second, the general risk of injury on the FlowRider [*17] is open and obvious. The FlowRider is a recreational activity, and the risk of which Magazine argues she should have been warned is created by the FlowRider itself, rather than by an anomalous condition in an otherwise safe area, such as a protruding nail or slippery substance on a walkway. Courts routinely recognize that sports and similar recreational activities pose an inherent risk of injury and that such inherent risk, in the absence of some hidden danger, is open and obvious. See Lapidus v. NCL Am. LLC, 924 F. Supp. 2d 1352 (S.D. Fla. 2013) (risk of heart attack from uneven terrain on a hike is open and obvious, but risk from invisible volcanic gasses might not be); Balachander v. NCL Ltd., 800 F. Supp. 2d 1196 (S.D. Fla. 2011) (risk of drowning while swimming in the ocean is open and obvious); Mendel v. Royal Caribbean Cruises, Ltd., No. 10-23398, 2012 U.S. Dist. LEXIS 86052, 2012 WL 2367853 (S.D. Fla. June 21, 2012) (risk of slipping while exiting a swimming pool is open and obvious); Young v. Carnival Corp., No. 09-21949, 2011 U.S. Dist. LEXIS 10899, 2011 WL 465366 (S.D. Fla. Feb. 4, 2011) (risk of tripping while hiking is open and obvious).

Although Magazine argues otherwise, there is no evidence that the Court can extract from the [*18] record supporting the existence of any other risk that is not open and obvious and that could have contributed to her injury. The Court will now address each of the three risks suggested in Magazine’s testimony and arguments.

c. Surface of the FlowRider

Magazine argues that she probably would not have participated in the FlowRider if she had known “that the floor of the FlowRider is a metal surface covered with foam and was as hard as it was.” (Response at 24.) She also testified that she had expected prior to her injury that the foam padding over the base of the FlowRider would be as thick as the padding at the back of the FlowRider (Magazine Dep. 102:6 – 103:3), in contrast to her understanding at the time of testimony that “[u]nderneath the surface of the FlowRider there’s some kind of metal.” (Magazine Dep. 88:7 – 9.)

If the FlowRider’s surface were somehow more dangerous than a reasonable person might expect, that might justify requiring a warning. See, e.g., Caldwell v. Carnival Corp., 944 F. Supp. 2d 1219, 1223 (S.D. Fla. 2013) (plaintiff had adequately stated claim that defendant breached its duty to warn of the slippery condition of its walkway). However, there is no evidence [*19] in the record, other than Magazine’s speculation, suggesting that the subsurface of the FlowRider is made of metal or that there is any less padding than would have been apparent to Magazine from her earlier 10 – 12 rides or to any other FlowRider participant who had the opportunity to walk barefoot on the FlowRider’s surface.

d. Particular Medical Conditions

Magazine testified in her deposition that the FlowRider Waiver was inadequate partially because “[t]here’s nothing . . . that I saw, that says if you have any kind of medical issues, that you should not go on this ride.” (Magazine Dep. 90:6 – 8; see also Response at 8 ¶ 29.) If the FlowRider posed a danger to people with particular medical conditions in ways that a reasonable person with such medical conditions might not expect, that too might justify requiring a warning. However, Magazine expressly states that her knee condition did not cause her injury (Magazine Dep. 126:5 – 127:17), and there is no evidence in the record suggesting that Magazine had any other such medical condition that contributed to her injury. Therefore, any failure to warn Magazine about a risk to those with particular medical conditions did not proximately [*20] cause Magazine’s injury.

e. Previous Injuries on the FlowRider

Magazine also appears to argue that RCL had a duty to inform her that people had previously been injured on the FlowRider. She states in her interrogatory responses that “if I had been advised of all the serious injuries that other RCL guests had experienced I would not have even taken a lesson.” (Pl. Interrog. ¶ 9.) In her deposition, Magazine described the FlowRider Waiver as inadequate partially because “they don’t tell you how many people have been injured on this thing.” (Magazine Dep. 90:2 – 13; see also Response at 8 ¶ 29.) Magazine now emphasizes that “at least one person died using the FlowRider and some 147 more were severely injured using it in the short time between the maiden voyages of the Allure of the Seas and Oasis of the Seas and Plaintiff’s accident” whereas “[n]o guest has ever died using any other onboard activities.” (Response at 27 – 28.)

This argument fails because it does not point to the existence of a non-open-and-obvious risk that could have proximately caused Magazine’s injury. It demonstrates that the FlowRider posed a risk of serious bodily injury or death and that RCL knew of this risk.⁷ However, [*21] RCL is not contesting these points; in fact, RCL’s primary argument is that RCL adequately warned Magazine of the risk of serious bodily injury or death. Magazine has pointed to no other authority, either in law or in customary practice, imposing a duty to inform passengers of specific numbers of injuries. (See Dep. of Daniel Connaughton, Ed.D. [DE-43-3] (“Connaughton Dep.”) 107:5 – 15.)

7 The list of injuries includes some fractures but also many sprained ankles and toe contusions, which are difficult to characterize as “severe” or as substantially similar to Magazine’s injury. (See Def.’s First. Suppl. Resp. to Pl.’s Req. for Produc. [DE-48-5]; Def’s Notice of Serving First Suppl. Resp. to Pl.’s Interrog. [DE-48-6].)

3. Failure of Proof on Essential Element of Claim

Put simply, while Magazine contends that certain warnings should have been more prominently displayed, she has not identified any risk about which she should have been warned differently such that a warning might have made a difference. The only risk that materialized was the general risk that one could fall and be injured on the FlowRider, which was so open and obvious that Magazine admits that a warning referring only to [*22] this general risk would not have mattered. Magazine has not pointed to any other risk about which there was any basis to expect a warning. As such, there is no genuine issue of material fact as to the claim that RCL breached its duty to warn.

B. Issues of Fact As To Negligent Instruction

RCL moves for summary judgment on Magazine’s negligent instruction claim on the grounds that (1) Magazine “avers that she received thorough instruction” from the instructors; (2) the “instructor’s use of a balancing rope to aid the FlowRider passengers was reasonable under the circumstances;” and (3) “there is no record evidence that RCL was on notice that the use of the balance rope was improper.” (SJ Mot. at 16 – 18.)

Magazine responds that (1) a reasonable instructor should ensure that participants understand the relevant risks, such as by requiring viewing of the safety video and providing an explicit opportunity for questions; (2) the use of a balancing rope is “not referenced anywhere as an acceptable balancing or teaching method” in the relevant FlowRider manuals (Response at 25); and (3) RCL failed to provide “reasonable instructional progression including the use of a bodyboard prior to stand-up [*23] riding, as suggested by Wave Loch/FlowRider.” (Report of Daniel Connaughton, Ed.D. [DE-40-1] at 7.) Additionally, at oral argument, Magazine’s counsel pointed to a few seconds of the accident video to support the argument that the hand-off of the balancing rope from one instructor to another contributed to Magazine’s loss of balance and subsequent injury.

The Court has already addressed RCL’s alleged failure to warn. Reasonable care by an instructor may very well include ensuring that participants understand the relevant risks. However, Magazine’s claim on this ground fails due to a lack of proximate causation and because the relevant risk was open and obvious.

As Magazine’s expert concedes, there is no evidence in the record that any failure by RCL to provide a bodyboard contributed to the risk of Magazine’s injury. (Connaughton Dep. 52:7 – 56:3.) Therefore, this argument fails as well.

However, because the Parties’ briefing did not address Magazine’s counsel’s argument at the March 20, 2014 hearing regarding the transfer of the balancing rope, the Court cannot conclude at this time, as a matter of law, that RCL’s instructors necessarily exercised reasonable care in their handling of [*24] the balancing rope, and that such breach did not heighten the risk of Magazine’s injury.⁸ While the Court is not deciding this issue of law at this time, in a paid lesson for a sport or similar recreational activity such as the FlowRider, reasonable care by an instructor may include not exposing a plaintiff to risks beyond those inherent in the recreational activity itself, at least not before the plaintiff is ready to handle those risks.⁹

8 There is no evidence undercutting RCL’s contention that the instructors had received all of RCL’s training to become a FlowRider instructor. (RCL Dep. 67:14 – 68:19; SJ Mot. at 6 ¶ 19; Response at 6 ¶ 19.) This may preclude a finding that their use of the balancing rope was inherently improper. (Connaughton Dep. 25:4 – 26:15.) However, this does not address whether the instructors exercised reasonable care in handling the balancing rope.

9 Federal courts exercising admiralty jurisdiction “may draw guidance from, inter alia, the extensive body of state law applying proximate causation requirements and from treatises and other scholarly sources.” Exxon Co., U.S.A. v. Sofec, Inc., 517 U.S. 830, 831, 116 S. Ct. 1813, 135 L. Ed. 2d 113 (1996). State law reveals a range of approaches. Compare, [*25] e.g., Alber ex rel. Albert v. Ober Gatlinburg, Inc., No. 3:02-CV-277, 2006 U.S. Dist. LEXIS 100150, 2006 WL 208580, at *5, *8 (E.D. Tenn. Jan. 25, 2006) (denying summary judgment on the grounds that (1) reasonable care meant not exposing skiers to risks that “were not an inherent risk of skiing” and (2) genuine issues of material fact remained as to “the adequacy of the ski lesson . . . and whether that lack of instruction was a proximate cause of [plaintiff's] fall and injuries.”) and Derricotte v. United Skates of Am., 350 N.J. Super. 227, 794 A.2d 867, 871 (N.J. Super. Ct. App. Div. 2002) (“[P]laintiff’s fall as a result of the rink’s alleged negligence in teaching her how to skate was not an ‘inherent,’ ‘obvious’ or ‘necessary’ risk of skating.”) with Fredrickson v. Mackey, 196 Kan. 542, 413 P.2d 86, 89 (Kan. 1966) (offering horse-riding lessons does not turn a defendant into an “insurer against all possibility of injury or accident”).

Magazine testified that the instructor holding the rope pulled her closer to the front and the middle of the FlowRider, where the water flow was considerably stronger, before she was ready, resulting in her being unable to control the flowboard as she fell. (Magazine Dep. 116:10 – 17, 118:7 – 119:8.) Furthermore, [*26] a jury could view the video of Magazine’s accident as corroborating her testimony and as showing that the hand-off of the balancing rope contributed to the risk of Magazine’s injury.

The Parties’ papers did not address Magazine’s claim as framed in this fashion. Given this framing, these issues remain:

(1) Did the instructors’ handling of the balancing rope contribute to the risk of Magazine’s particular injury?

(2) Was the resulting risk greater than the inherent risk of injury on the FlowRider?

RCL’s response that “the rope helped to maintain Plaintiff’s balance before she fell” (SJ Mot. at 7 ¶ 24) does not adequately address these issues. The relevant risk is not of falling but of falling in a way likely to result in injury, such as by losing control of the board while falling. RCL’s argument that “there is no record evidence that RCL was on notice that the use of the balance rope was a danger to any passenger” (SJ Mot. at 18) is also not dispositive, because the requirement of notice applies to risks created by passive conditions such as slippery walkways or protruding nails, not to risks created by a defendant’s actions. See Long v. Celebrity Cruises, Inc., No. 12-22807, 2013 U.S. Dist. LEXIS 164035, 2013 WL 6043918, at *3 (S.D. Fla. Aug. 1, 2013) [*27] (collecting cases).

RCL also argues that Magazine’s testimony is speculative and therefore insufficient to defeat summary judgment. However, the direct testimony of an accident victim about her own accident is not “speculation.” The two cases that RCL cites are not applicable. (Def.’s Reply in Supp. of Mot. for Final Summ. J. at 10.) The first case, Putman v. Sec’y, Dep’t of Veterans Affairs, 510 F. App’x 827 (11th Cir. 2013), addresses the procedurally distinct burden-shifting framework of employment discrimination. The second case, Doe v. NCL (Bahamas) Ltd., No. 11-22230, 2012 U.S. Dist. LEXIS 162654, 2012 WL 5512347 (S.D. Fla. Nov. 14, 2012), involves a plaintiff’s initial speculation that contradicted that same plaintiff’s later representations to the court, rather than a plaintiff’s testimony on a subject about which she has personal knowledge.¹⁰

10 Magazine’s testimony about her accident thus differs from her speculation as to the composition of the FlowRider’s subsurface.

Because the Parties have not focused on the reframed issues, the Court cannot conclude at this time that there are no genuine issues of material fact as to (1) whether the instructors’ handling of the balancing rope breached their duty of reasonable [*28] care under the circumstances and (2) whether any such breach actually and proximately caused Magazine’s injury. The Court is mindful that accidents, sadly, do happen, and a cruise ship operator “is not an insurer of its passengers’ safety. There thus must be some failure to exercise due care before liability may be imposed.” Monteleone v. Bahama Cruise Line, Inc., 838 F.2d 63, 65 (2d Cir. 1988) (citation omitted). If Magazine fails to establish the necessary evidentiary support for this claim at trial, the Court will entertain a motion for a directed verdict after she rests her case.

IV. Conclusion

Accordingly, it is

ORDERED that

1. Defendant’s Motion for Final Summary Judgment [DE-41] is GRANTED IN PART AND DENIED IN PART as follows:

a) GRANTED WITH PREJUDICE with respect to Magazine’s allegation that RCL “caused an unreasonably dangerous condition under the circumstances.”

b) GRANTED WITH PREJUDICE with respect to Magazine’s allegation that RCL “negligently maintained the Flowrider in question.”

c) GRANTED WITH PREJUDICE with respect to Magazine’s allegation that “the Flowrider in which the Plaintiff fell was negligently designed.”

d) GRANTED WITH PREJUDICE with respect to Magazine’s allegation [*29] that RCL “failed to warn the Plaintiff and fellow passengers of a dangerous and hazardous condition about which it knew or should have known.”

e) DENIED with respect to Magazine’s reframed allegation that RCL negligently instructed her in the use of the FlowRider.

2. The deadline to file the Joint Pretrial Stipulation, proposed jury instructions and verdict form, and Motions in Limine and Responses [see DE-8 at 2] is EXTENDED to April 10, 2014.

3. The Pretrial Conference is RESCHEDULED to 1:30 pm on April 22, 2014.

4. Defendant’s Motion in Limine to Admit Evidence of Defendant’s Warnings Regarding the FlowRider [DE-29] is DENIED as failing to comply with the requirements set in this Court’s March 12, 2013 Order [DE-8 at 2].

DONE and ORDERED in Miami, Florida, this 27th day of March, 2014.

/s/ Patricia A. Seitz

PATRICIA A. SEITZ

UNITED STATES DISTRICT JUDGE