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Estate of Taylor v. Outdoor Adventures of Davison, LLC (Mich. App. 2022)
Posted: January 31, 2022 | Author: Recreation Law | Filed under: Michigan, Paddlesports, Uncategorized | Tags: Commercial Campground, drowning, Exclusive Remedy, Michigan, Paddleboard, Worker's Compensation | Leave a comment
ESTATE OF ALLYN L. TAYLOR, by LOUIS B. TAYLOR, Personal Representative, Plaintiff-Appellee,
OUTDOOR ADVENTURES OF DAVISON, LLC, Defendant-Appellant.
Nos. 355035, 355036
Court of Appeals of Michigan
Genesee Circuit Court LC No. 18-110936-NO.
Before: Mark T. Boonstra, P.J., and Mark J. Cavanagh and Michael J. Riordan, JJ.
In this negligence action arising from the drowning death of plaintiff's decedent, Allyn Taylor, defendant Outdoor Adventures of Davison, LLC, appeals by leave granted the trial court's orders denying its motions for summary disposition.[1] We hold that the trial court erred by ruling that the exclusive remedy provision of the Worker's Disability Compensation Act (WDCA), MCL 418.101 et seq., did not apply to bar plaintiff's negligence claim. At the time of his drowning death, Taylor, an employee of defendant, was on defendant's grounds performing a task for defendant within a reasonable time after his working hours. Thus, he is presumed to have been in the course of his employment and he was not engaged in an activity the major purpose of which was social or recreational. MCL 418.301(3). Therefore, under MCL 418.131(1), the WDCA provides plaintiffs exclusive remedy against defendant for Taylor's drowning death. Accordingly, we reverse and remand to the trial court for entry of summary disposition in favor of defendant.
This case arises from the tragic June 12, 2016 drowning death of plaintiff s decedent, 20-year-old Allyn Taylor, on Lake Linda in Davison, Michigan. Taylor was an employee of defendant, which owns a campground on Lake Linda. Defendant provided paddleboats to its customers for their use on Lake Linda. Taylor's job responsibilities included checking out the boats and making sure all the boats were accounted for at the end of the day. When the boats were not in use, they were moored to a dock, but many of the ties were bad so boats would sometimes float away. One of Taylor's job responsibilities was to retrieve any wayward paddleboats. Taylor would sometimes use another boat to pull a wayward boat back in, but if the wayward boat was not too far away from the dock, Taylor would sometimes swim out to it and pull it back in. Evidence was presented that the lake contained seaweed or lake weeds in the water near the dock, which could make swimming difficult.
On June 12, 2016, Taylor finished work at approximately 8:00 p.m. He thereafter spoke to his mother on the telephone and told her that he was going to go fishing while he waited for his parents to pick him up, and he also planned on bringing in a paddleboat that had drifted away from the dock. Taylor drowned that evening while swimming to reach a wayward paddleboat.
According to Deputy Jason Thomas of the Genesee County Dive Team, the water right near the dock was clear, but lake weeds were visible at the top of the water within 10 yards of the dock. Taylor's body was recovered in 9 to 10 feet of water near the wall of lake weeds, approximately 90 feet from the dock. Autopsy photographs showed that Taylor had weeds wrapped around his left arm, in his mouth, and also in his nose. Plaintiffs expert in aquatic safety, Ralph L. Johnson, Ph.D, opined that Taylor experienced an "active drowning," whereby he became entangled in the lake weeds, which caused him to panic below the water surface, struggle a great deal, and "suck[] water like crazy." Although Taylor had also been diagnosed with syncope, a physical condition that causes fainting spells, neither Johnson nor the medical examiner, Dr. Patrick Cho, M.D., believed that this condition contributed to Taylor's drowning.
Plaintiff filed this action against defendant for negligence. Plaintiff alleged that Taylor drowned as a result of becoming entangled in the lake weeds in Lake Linda, and that defendant was aware of the hazardous lake weeds and did nothing to alleviate the dangerous condition or to warn swimmers of the potential danger. As relevant to these appeals, defendant filed two motions for summary disposition under MCR 2.116(C)(4) and (C)(10), respectively, asserting that plaintiffs action was barred by the exclusive remedy provision of the WDCA, MCL 418.131(1), and that plaintiffs action was barred by the recreational land use act (RUA), MCL 324.73301(1), because Taylor was engaged in the recreational activity of swimming at the time of his drowning death. Defendant also argued that plaintiff could not establish a triable issue of fact regarding causation because plaintiffs theory that Taylor drowned after becoming entangled in the lake weeds was based solely on speculation, which is insufficient to establish a question of fact. The trial court disagreed with defendant on all of these issues, and thus denied defendant's motions for summary disposition. As noted, this Court granted defendant's two applications for leave to appeal and consolidated the cases.
II. EXCLUSIVE REMEDY
We first consider defendant's argument that the trial court erred by holding that the exclusive remedy provision of the WDCA did not apply to bar plaintiff's action. We agree that defendant was entitled to summary disposition on this ground.
"We review de novo a trial court's decision on a motion for summary disposition." O'Leary v O'Leary, 321 Mich.App. 647, 651; 909 N.W.2d 518 (2017). Summary disposition is appropriate under MCR 2.116(C)(4) if the trial court does not have jurisdiction over the subject matter. Petersen Fin LLC v Kentwood, 326 Mich.App. 433, 441; 928 N.W.2d 245 (2018). If the facts are not in dispute, the issue of whether a plaintiff's injury arose out of and in the course of employment under MCL 418.301(1) is a question of law reviewed de novo. See Smith v Chrysler Group, LLC, 331 Mich.App. 492, 496; 954 N.W.2d 214 (2020).
It is undisputed that, at the time of Taylor's drowning, he was attempting to secure a wayward paddleboat for defendant, his employer. MCL 418.301 provides, in pertinent part:
(1) An employee, who receives a personal injury arising out of and in the course of employment by an employer who is subject to this act at the time of the injury, shall be paid compensation as provided in this act. . . .
(3) An employee going to or from his or her work, while on the premises where the employee's work is to be performed, and within a reasonable time before and after his or her working hours, is presumed to be in the course of his or her employment. Notwithstanding this presumption, an injury incurred in the pursuit of an activity the major purpose of which is social or recreational is not covered under this act.
MCL 418.131(1) further provides that "[t]he right to the recovery of benefits as provided in [the WDCA] shall be the employee's exclusive remedy against the employer for a personal injury or occupational disease. The only exception to this exclusive remedy is an intentional tort." Under MCL 418.131(3), however, an injury is not covered by the WDCA if it was incurred "in the pursuit of an activity the major purpose of which is social or recreational."
In Eversman v Concrete Cutting & Breaking, 463 Mich. 86, 95; 614 N.W.2d 862 (2000), our Supreme Court explained that in applying "the social or recreational test" of MCL 418.301(3), a court "must consider the major purpose of the activity in which the plaintiff was engaged at the time of the injury." See also Buitendorp v Swiss Valley, Inc, 485 Mich. 879; 772 N.W.2d 50 (2009) (holding that "the major purpose of the plaintiff's activity at the time of injury determines whether the social or recreational bar [of MCL 418.301(3)] applies"). In considering this question, the court is required to examine "the totality of the circumstances." Eversman, 463 Mich. at 96. In the present case, the evidence demonstrated that Taylor had finished his work and went fishing while waiting for his parents to pick him up from work, but then decided to swim out to a wayward paddleboat to return it to the dock, which was one of his employment responsibilities. Taylor's time card reflected that he began work on June 12, 2016, at 12:58 p.m. and clocked out at 8:04 p.m. Two witnesses confirmed that Taylor was fishing with them off the dock, and they last saw Taylor at approximately 8:49 p.m., when they left the dock to go fish by a nearby bridge. The Richfield Township Police Department was dispatched to the scene at 9:45 p.m. Taylor spoke to his mother on the telephone and told her that he planned to retrieve a paddleboat that had floated away from the dock.
Because Taylor was on defendant's grounds within a reasonable time after his working hours, he is presumed to have been in the course of his employment under MCL 418.301(3). Additionally, under "the social and recreational test" set forth in Eversman, at the time of his drowning, Taylor was attempting to bring into shore a paddleboat that had drifted away. Because the evidence is clear that the "major purpose" of this activity was to perform a task for his employer, it is not subject to the social or recreational bar of MCL 418.301(3). Eversman, 463 Mich. at 95. Therefore, under MCL 418.131(1), the WDCA provides plaintiffs exclusive remedy against defendant for Taylor's drowning death. Accordingly, the trial court erred by holding that the exclusive remedy provision does not bar plaintiffs negligence claim against defendant.
The present case is distinguishable from Nock v M & G Convoy, Inc (On Remand), 204 Mich.App. 116; 514 N.W.2d 200 (1994), which is cited in Eversman. In Nock, the plaintiff truck driver, after making deliveries for his employer to several cities in Ohio, arrived in Detroit and, while at a Detroit bar, was attacked by another patron with a pool cue and lost an eye. Id. at 118. This Court agreed that under the version of MCL 418.301(3) in effect at that time, "the major purpose" of the plaintiffs patronage at the bar was both social and recreational, and therefore, his injuries were not compensable under the WDCA. Id. at 121. In contrast, Taylor was on defendant's grounds a short time after his work hours with defendant had ended and, although he was engaged in the social activity of fishing in Lake Linda while waiting for his parents to pick him up, he stopped that activity and was engaged in an effort to secure a wayward paddleboat for defendant at the time he drowned. Under these circumstances, the major purpose of Taylor's activity at the time of drowning was not social or recreational, and his injuries are presumed to have arisen out of and during the course of his employment. Therefore, the exclusive remedy provision of the WDCA is applicable.[2]
We reverse the trial court's ruling that the exclusive remedy provision of the WDCA is not applicable. At the time of his drowning death, Taylor was on defendant's grounds performing a task for defendant, his employer, within a reasonable time after his working hours. Thus, he is presumed to have been in the course of his employment and he was not engaged in an activity the major purpose of which was social or recreational. MCL 418.301(1), (3). Therefore, under MCL 418.131(1), the WDCA provides plaintiffs exclusive remedy against defendant for Taylor's drowning death, and the trial court lacked jurisdiction over this case. We accordingly remand to the trial court for entry of summary disposition in favor of defendant. We do not retain jurisdiction
[1] In Docket No. 355035, defendant appeals by leave granted the trial court's September 16, 2020 order denying its motion for summary disposition under MCR 2.116(C)(4). Estate of Allyn Taylor v Outdoor Adventures of Davison LLC, unpublished order of the Court of Appeals, entered December 17, 2020 (Docket No. 355035). In Docket No. 355036, defendant appeals by leave granted the trial court's June 29, 2020 order denying its motion for summary disposition under MCR 2.116(C)(10). Estate of Allyn Taylor v Outdoor Adventures of Davison LLC, unpublished order of the Court of Appeals, entered December 17, 2020 (Docket No. 355036). We consolidated the cases "to advance the efficient administration of the appellate process." Estate of Allyn Taylor v Outdoor Adventures of Davison LLC, unpublished order of the Court of Appeals, entered January 20, 2021 (Docket Nos. 355035 & 335036).
[2] Having so concluded, we need not reach defendant's alternate arguments for reversal.
Stand Up Paddleboard case. Rental company not liable for death of renter who could not swim.
Posted: October 14, 2019 | Author: Recreation Law | Filed under: Assumption of the Risk, California, Paddlesports, Release (pre-injury contract not to sue) | Tags: Admiralty Law, drowning, Leash, PFD, Release, Rental, Stand Up Paddleboard, SUP, Waiver | Leave a comment
Release and assumption of the risk both used to defeat plaintiff's claims.
Citation: Kabogoza v. Blue Water Boating, Inc., et al
State: California, United States District Court, E.D. California
Plaintiff: Mary Bacia Kabogoza, on behalf of herself and the Estate of Davies Khallit Kabogoza
Defendant: Blue Water Boating, Inc., Skip Abed and ten "Roe" defendants
Plaintiff Claims: wrongful death, negligence and gross negligence
Defendant Defenses: Assumption of the Risk and Release
Renter of a stand-up paddleboard drowned after falling off his board. He did not use the free leash and wore his inflatable PFD incorrectly so it did not work.
Court found the plaintiff assumed the risk and had signed a release preventing his survivors from suing.
In April 2017, Davies Kabogoza and his friend, Laura Tandy, rented stand-up paddleboards from Defendant Blue Water Boating. Kabogoza had rented paddleboards from this rental company before. He was familiar with the staff, but had never told them that he could not swim.
Kabogoza and Tandy signed a rental agreement before taking out the paddleboards. The one-page agreement included several general and SUP-specific safety rules, along with a release of liability. Upon signing the agreement, the rental company-per Kabogoza's request-gave him and Tandy intermediate-level paddleboards and belt-pack flotation devices. Regular life vests were also available, but Defendants allow their customers to choose between the two options. Belt-pack flotation devices are "very popular" among paddle boarders, but customers often wear them incorrectly, with the flotation portion of the device facing backwards. Id. Plaintiff alleges that Kabogoza was wearing his incorrectly at the time of the accident.
Defendants also gave its customers the option of using a paddleboard leash. Defendant Skip Abed, the owner of Blue Water Boating, told an investigator that 9 out of 10 times, customers do not want a leash. Neither Kabogoza nor Tandy used a leash while paddleboarding.
Shortly after Kabogoza and Tandy began using their paddleboards in the Santa Barbara Harbor, the wind increased, and the water became choppy. Tandy was in front of Kabogoza when she heard a splash behind her. When she turned around, she saw that Kabogoza had fallen off his board, and was struggling to keep his head above water. Tandy was unable to reach Kabogoza and prevent him from drowning. A dive team later found his body at the bottom of the ocean in about 30 feet of water. Id. When the divers found him, Kabogoza's flotation device was attached to his waist, but in the backwards position. An inspection revealed that the device was in "good working order."
The defendants filed a motion to dismiss, which was granted by the district court.
The court first looked at the gross negligence claim of the plaintiffs. Under California law, gross negligence is defined as "the want of even scant care or an extreme departure from the ordinary standard of conduct." The court then went on to reiterate the California Supreme Court issue of disposing of gross negligence claims that do not meet the definition.
The court then looked at the defense of assumption of the risk. The plaintiff's plead admiralty and state law claims in this lawsuit. Each has different types of claims and different defenses and defenses to state law claims do not work in admiralty cases and vice versa. The court waded through the differences in each of the defenses presented by the defendant.
Assumption of the risk is not a defense to an admiralty law claim. Assumption of the risk is a defense to state law claims. The court then went back to the gross negligence claim and found the facts plead by the plaintiff did not rise to the level of gross negligence.
The next claim of the plaintiff's was a wrongful-death claim. A wrongful-death claim is a claim of the survivors of the deceased. However, any defense to a claim by the deceased is a bar to a wrongful-death claim.
Because the rental agreement signed by the deceased included release language, it was a bar to the wrongful-death claim of the deceased survivors.
First, this is a stand up paddleboard rental; however, the court did not treat it any differently then the rental of any other boat.
Knowledge that renters might wear they PFD incorrectly is disconcerting. I would counsel clients to at least post a sign or something showing people the proper way to wear their PFD's.
I also think a leash would be required to make sure the boards come back. Fall off your board and the currents will send it away faster than you can swim and the rental company has lost another SUP.
However, tragic accident, legally the result was correct I believe.
Assumption of the Risk is a defense to negligence and gross negligence claims in this case against a college offering for credit tour abroad study.
Posted: April 1, 2019 | Author: Recreation Law | Filed under: Assumption of the Risk, Georgia, Swimming | Tags: #AdventureTourism, #JamesHMoss, #Rec-Law, #RecLaw, assumption of the risk, beach, Coasta Rica, Coercion, College, College Course, Course, Current, Drowned, drowning, duty, For Credit, Gross negligence, Inc., Inherent Risk, JimMoss, Knowledge, Law, Legal Duty, Lifeguard, Negligence, Ocean, Oglethorpe University, OutdoorLaw, OutdoorRecreationLaw, Pacific Ocean, Playa Ventanas, Professor, RecreationLaw, Rip Tide, Student, Study Abroad, Summary judgment, Swimmer, Swimmers, swimming | Leave a comment
Student died swimming in the Pacific Ocean and his parents sued the college for his death. College was dismissed because student was an adult and assumed the risk that killed him.
Downes et al. v. Oglethorpe University, Inc., 342 Ga.App. 250 (Ga.App. 2017)
State: Georgia, Court of Appeals of Georgia
Plaintiff: Elvis Downes and Myrna Lintner (parents of the deceased)
Defendant: Oglethorpe University, Inc.
There are some risks that the courts say you understand and accept the risks because we know of them. Examples are cliffs and water. Here, the family of a student who died on a study abroad trip while swimming in the ocean could not sue because the student assumed the risks of swimming.
What is interesting is the assumption of the risk defense was used to defeat a claim of negligence and Gross Negligence.
During the 2010-2011 academic year, Oglethorpe offered to their students a 12-day study-abroad trip to Costa Rica. The students were charged a fee for the trip to pay for expenses such as airfare, lodging, and food. The students were also required to pay the " per credit tuition rate" and were to receive four credits toward their degree for academic work associated with the trip. Oglethorpe retained Horizontes, a Costa Rican tour operator, to coordinate the trip and to provide transportation and an English-speaking guide.
Dr. Jeffrey Collins was then the director of Oglethorpe's study-abroad program. According to Collins, Oglethorpe tried to follow " best practices," which is " defined as those protocols, procedures that as best and as far as possible ensure[ ] the safety of students." He acknowledged that students would swim on the trips. Collins was not aware of any potential dangers in Costa Rica and did no investigation to ascertain if there were potential dangers in Costa Rica.
During pre-trip meetings with Downes and the five other students who had registered for the program, Dr. Roark Donnelly and Dr. Cassandra Copeland, the two professors who accompanied the students on the trip, asked the students if everyone was a good swimmer, and the students agreed that they were. The group also discussed swimming in the ocean, including " that there are going to be currents." One of the professors told the students that, during a previous study-abroad trip to another location, a student had recognized that he was a weak swimmer and was required to wear a life jacket during all water activities. After hearing this, the students continued to express that they were good swimmers. Before leaving on the trip, the students were required to sign a release agreement which included an exculpatory clause pertaining to Oglethorpe.
The students and professors flew to Costa Rica on December 28, 2010. During the course of the trip, on the afternoon of January 4, 2011, the group arrived at a hotel on the Pacific coast. The six students, two professors, the guide, and the driver got into their bus and drove to a nearby beach, Playa Ventanas, which had been recommended by the hotel. Upon their arrival, there were other people on the beach and in the water. There were no warning signs posted on the beach, nor any lifeguards or safety equipment present.
The students swam in the ocean, staying mostly together, and eventually ventured out into deeper water. After about 20 minutes, Dr. Donnelly yelled for the students to move closer to shore. Shortly thereafter, student Robert Cairns, a former lifeguard, heard a female student screaming. Cairns swam toward the screams, and the student informed him that Downes needed help. Cairns realized that " some kind of current … had pulled us out." Cairns swam to within ten feet of Downes and told him to get on his back and try to float. Downes could not get on his back, and Cairns kept telling him he had to try. After some time, Downes was struck by a wave, went under the water, and disappeared from Cairns's view. Downes's body was recovered from the ocean three days later.
The deceased student signed a release in this case, however the trial court and the appellate court made their decisions based on assumption of the risk.
Under Georgia law, assumption of the risk is a complete bra to a recovery.
The affirmative defense of assumption of the risk bars a plaintiff from recovering on a negligence claim if it is established that he[,] without coercion of circumstances, chooses a course of action with full knowledge of its danger and while exercising a free choice as to whether to engage in the act or not.
Absent a showing by the plaintiff of coercion or a lack of free choice assumption of the risk prevents the plaintiff from recovery any damages for negligence from the defendant.
To prove the deceased assumed the risk the college must show:
A defendant asserting an assumption of the risk defense must establish that the plaintiff (i) had knowledge of the danger; (ii) understood and appreciated the risks associated with such danger; and (iii) voluntarily exposed himself to those risks.
The plaintiff does not have to know and understand every aspect and facet of the risk. The knowledge can be that there are inherent risks in an activity even if the specifics of those risks are not known.
The knowledge requirement does not refer to a comprehension of general, non-specific risks. Rather, the knowledge that a plaintiff who assumes the risk must subjectively possess is that of the specific, particular risk of harm associated with the activity or condition that proximately causes injury.
Assumption of the risk is usually a jury decision because the jury must weigh whether or not the plaintiff truly understood the risks. However, if the risk is such that there is undisputed evidence that it exists and the plaintiff knew or should have known about it, the court can act.
As a general rule, whether a party assumed the risk of his injury is an issue for the jury that should not be decided by summary judgment unless the defense is conclusively established by plain, palpable and undisputed evidence.
Drowning is a known and understood risk under Georgia law of being in the water.
It is well established under Georgia law that " [t]he danger of drowning in water is a palpable and manifest peril, the knowledge of which is chargeable to [persons] in the absence of a showing of want of ordinary capacity.
Because the deceased student was a competent adult, meaning over the age of 18 and not mentally informed or hampered, the risk was known to him. "As Downes was a competent adult, he was necessarily aware of the risk of drowning when he voluntarily entered the Pacific Ocean."
The plaintiff's argued the college created the risk because they did not investigate the beach, have an emergency preparedness plan, ensure the professors had adequate training and did not supply safety equipment. However, the court did not buy this because there was nothing in the record to show the College created or agreed to these steps to create an additional duty on the colleges part.
Assuming that Oglethorpe, having undertaken a study-abroad program, was under a duty to act with reasonable care, and that there is evidence of record that Oglethorpe failed to do so, assumption of risk is nevertheless a defense to negligence.
The college was under not statutory or common law duty to provide any of the issues the plaintiff argued. Nor did the college create a duty by becoming an insurer of the students.
Appellants do not show, however, that Oglethorpe was under a statutory or common law duty to provide safety equipment to its students during an excursion to the beach, or that the ocean is analogous to a nonresidential swimming pool. Nor can we conclude that Oglethorpe became an insurer for the safety of its students by undertaking a study-abroad program, or that it was responsible for the peril encountered by Downes in that it transported him to the beach.
Even then the assumption of the risk defense would apply because assuming the risk relieves the defendant of any negligence.
Even if a defendant is negligent, a determination that a plaintiff assumed the risk or failed to exercise ordinary care for [his] own safety bars recovery for the resulting injury suffered by the plaintiff, unless the injury was wilfully and wantonly inflicted.
The defendant was not liable because the student, as an adult would have appreciated the risks of drowning in the Pacific Ocean.
Because he was a competent adult, Downes would have appreciated the specific risk of drowning posed by entering a body of water so inherently dangerous as the Pacific Ocean. As Downes voluntarily did so, Oglethorpe established that he assumed that risk. Although Downes's death was undeniably tragic, we are constrained to conclude that the trial court correctly granted Oglethorpe's motion for summary judgment.
There are two important points in this decision.
First, although not discussed, the court allowed assumption of the risk to stop a claim for gross negligence. Normally, like assumption of the risk, whether or not a defendant was grossly negligent requires a review by the jury to determine if the facts alleged meet the definition of gross negligence in the state.
Second is the issue that the less you do the less liability you create. In the pre-trip briefing with the students the risks of swimming in the ocean were discussed. The students all stated they were strong swimmers and nothing more was done.
If the college had made them take a swim test, further questioned their swimming skills by requiring more information or making sure a professor who was a lifeguard was on the trip, the college would have created an additional duty owed to the students.
College, For Credit, Course, College Course, Study Abroad, Coasta Rica, Pacific Ocean, Swimmer, Lifeguard, Assumption of the Risk, Duty, Negligence, Gross Negligence, Summary Judgment, Professor, Student, Playa Ventanas, Oglethorpe University, Inc., Oglethorpe University, Swimmers, Swimming, Rip Tide, Current, Ocean, Drowned, Drowning, Inherent Risk, Beach, Legal Duty, Coercion, Knowledge, Duty, AdventureTourism, JamesHMoss, JimMoss, Law, OutdoorLaw, OutdoorRecreationLaw, RecLaw, Rec-Law, RecreationLaw
Posted: March 12, 2019 | Author: Recreation Law | Filed under: Assumption of the Risk, Georgia, Legal Case, Swimming | Tags: #AdventureTourism, #JamesHMoss, #Rec-Law, #RecLaw, assumption of the risk, beach, Coasta Rica, Coercion, College, College Course, Course, Current, Drowned, drowning, duty, For Credit, Gross negligence, Inc., Inherent Risk, JimMoss, Knowledge, Law, Legal Duty, Lifeguard, Negligence, Ocean, Oglethorpe University, OutdoorLaw, OutdoorRecreationLaw, Pacific Ocean, Playa Ventanas, Professor, RecreationLaw, Rip Tide, Student, Study Abroad, Summary judgment, Swimmer, Swimmers, swimming | Leave a comment
342 Ga.App. 250 (Ga.App. 2017)
802 S.E.2d 437
Downes et al. v. Oglethorpe University, Inc
Court of Appeals of Georgia
Assumption of the risk. DeKalb State Court. Before Judge Polk, pro hac vice.
Katherine L. McArthur, Caleb F. Walker, for appellants.
Swift, Currie, McGhee & Hiers, David M. Atkinson, for appellee.
[802 S.E.2d 438]
Ellington, Presiding Judge.
Erik Downes, then a 20-year-old college student, drowned in the Pacific Ocean on January 4, 2011, while he was in Costa Rica attending a study-abroad program organized by Oglethorpe University, Inc. Elvis Downes and Myrna Lintner (the " Appellants" ), as Downes's parents and next of kin, and in their capacity as administrators of Downes's estate, brought this wrongful death action alleging that Oglethorpe's negligence and gross negligence were the proximate cause of Downes's drowning. The trial court granted Oglethorpe's motion for summary judgment, and the Appellants appeal. We affirm because, as a matter of law, Downes assumed [802 S.E.2d 439] the risk of drowning when he chose to swim in the Pacific Ocean.
Under OCGA § 9-11-56 (c), [s]ummary judgment is warranted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. We review the grant or denial of a motion for summary judgment de novo, and we view the evidence, and the reasonable inferences drawn therefrom, in a light most favorable to the nonmovant. (Citations and punctuation omitted.) Assaf v. Cincinnati Ins. Co., 327 Ga.App. 475, 475-476 (759 S.E.2d 557) (2014). See also Johnson v. Omondi, 294 Ga. 74, 75-76 (751 S.E.2d 288) (2013) (accord).
So viewed, the evidence shows the following. During the 2010-2011 academic year, Oglethorpe offered to their students a 12-day study-abroad trip to Costa Rica. The students were charged a fee for the trip to pay for expenses such as airfare, lodging, and food. The students were also required to pay the " per credit tuition rate" and were to receive four credits toward their degree for academic work associated with the trip. Oglethorpe retained Horizontes, a Costa Rican tour operator, to coordinate the trip and to provide transportation and an English-speaking guide.
The Appellants filed this wrongful death action claiming that Downes's death was the proximate result of Oglethorpe's negligence and gross negligence. Evidence adduced during discovery included the testimony of Dr. John Fletemeyer, the Appellants' expert in [802 S.E.2d 440] coastal sciences, that Downes had been caught in a " rip current" [1] when he became distressed and ultimately drowned. Dr. Fletemeyer opined that some beaches on the western coast of Costa Rica are particularly dangerous " mainly [because of] the lack of lifeguards," but also because of physical conditions such as " high wave energy force" and " pocket beaches," and that Playa Ventanas was a pocket beach.[2] He also testified that, in the context of the ocean, " every beach you go to is extremely dangerous." Other testimony showed that a continuing problem with drownings on beaches along the Pacific coast of Costa Rica was well publicized in Costa Rica, and that the United States Consular Authority in Costa Rica had " published statistics about the danger of swimming on Costa Rica's beaches and identified specifically the west coast beaches as being the most dangerous." [3]
Following discovery, Oglethorpe moved for summary judgment and argued that (i) Oglethorpe owed no legal duty to Downes; (ii) the Appellants' negligence claims are barred by Downes's written waiver of liability and there is a lack of evidence that Oglethorpe was grossly negligent; and (iii) Downes assumed the risk of swimming in the ocean. The trial court granted Oglethorpe's motion for summary judgment.
1. The Appellants contend that Oglethorpe was not entitled to summary judgment on the ground that Downes, as a matter of law, assumed the risk of drowning when he swam in the ocean.[4]
The affirmative defense of assumption of the risk bars a plaintiff from recovering on a negligence claim if it is established that he[,] without coercion of circumstances, chooses a course of action with full knowledge of its danger and while exercising a free choice as to whether to engage in the act or not. (Citation and punctuation omitted.) Vaughn v. Pleasent, 266 Ga. 862, 864 (1) (471 S.E.2d 866) (1996).
A defendant asserting an assumption of the risk defense must establish that the plaintiff (i) had knowledge of the danger; (ii) understood and appreciated the risks associated with such danger; and (iii) voluntarily exposed himself to those risks. The knowledge requirement does not refer to a comprehension of general, non-specific risks. Rather, the knowledge that a plaintiff who assumes the risk must subjectively possess is that of the specific, particular risk of harm associated with the activity or condition that proximately causes injury.
(Citation and punctuation omitted.) Gilreath v. Smith, 340 Ga.App. 265, 268 (1) (797 S.E.2d 177) (2017). " As a general rule, whether a party assumed the risk of his injury is an issue for the jury that should not be decided by summary judgment unless the defense is conclusively established by plain, palpable and undisputed evidence." (Citation and punctuation omitted.) Findley v. Griffin, 292 Ga.App. 807, 809 (2) (666 S.E.2d 79) (2008).
[342 Ga.App. 254] It is well established under Georgia law that " [t]he danger of drowning in water is a palpable and manifest peril, the knowledge of which is chargeable to [persons] in the absence of a showing of want of ordinary capacity." Bourn v. Herring, 225 Ga. 67, 69 (2) (166 S.E.2d 89) (1969). See, e.g., White v.
[802 S.E.2d 441]Ga. Power Co., 265 Ga.App. 664, 666 (1) (595 S.E.2d 353) (2004) (the " [p]erils of deep water are instinctively known" ). The record does not show that Downes was aware of the presence of rip currents in the waters off the beach; however, " [i]t is the body of water per se that presents an obvious risk of drowning, not its attendant conditions such as a strong unseen current or a deep unknown hole." Id. at 667 (1). As Downes was a competent adult, he was necessarily aware of the risk of drowning when he voluntarily entered the Pacific Ocean.
The Appellants contend that Oglethorpe had a duty to exercise ordinary care in the planning and implementing of its study-abroad program to avoid exposing the students to a risk of drowning. Because Oglethorpe owed this duty, they contend, the fact that Downes entered the water voluntarily does not establish as a matter of law that he assumed the risk of drowning. Rather, they contend, Oglethorpe created the dangerous situation by taking Downes to the beach without investigating its dangers, adopting an emergency preparedness plan, ensuring the professors in charge had adequate training and procedures for supervising swimming students, and supplying safety equipment.
Assuming that Oglethorpe, having undertaken a study-abroad program, was under a duty to act with reasonable care, and that there is evidence of record that Oglethorpe failed to do so, assumption of risk is nevertheless a defense to negligence. " Even if a defendant is negligent, a determination that a plaintiff assumed the risk or failed to exercise ordinary care for [his] own safety bars recovery for the resulting injury suffered by the plaintiff, unless the injury was wilfully and wantonly inflicted." (Citation omitted.) City of Winder v. Girone, 265 Ga. 723, 724 (2) (462 S.E.2d 704) (1995). In Rice v. Oaks Investors II, 292 Ga.App. 692, 693-694 (1) (666 S.E.2d 63) (2008), the defendant was entitled to a directed verdict where, notwithstanding evidence that the defendants were negligent per se in failing to properly enclose the pool in which the ten-year-old decedent drowned, the child's own negligence was the sole proximate cause of her death because the risk of swimming in the pool was obvious as a matter of law. Similarly, notwithstanding whether a defendant breached a duty to care for or supervise a decedent, the decedent's assumption of the risk of injury may bar recovery. See Sayed v. Azizullah, 238 Ga.App. 642, 643-644 (519 S.E.2d 732) (1999) (finding no need to reach the issue [342 Ga.App. 255] of whether a duty was owed by the defendant to care for the 17-year-old decedent because the decedent was charged with appreciating the risk of swimming in the lake as a matter of law, and he voluntarily assumed that risk); Riley v. Brasunas, 210 Ga.App. 865, 868 (2) (438 S.E.2d 113) (1993) (any failure of the defendant to exercise the duty of an ordinary responsible guardian in watching over the seven-year-old child, who was injured using a trampoline, could not be the proximate cause of the child's injuries where the child knowingly exposed himself to the obvious danger). See also Bourn v. Herring, 225 Ga. at 69-70 (2) (as the decedent, who was over 14 years old, was chargeable with diligence for his own safety against palpable and manifest peril, plaintiff could not recover against defendants for failure to exercise ordinary care in supervising the decedent in and around the lake in which he drowned).
As Appellants show, a decedent's decision to enter a body of water with awareness of the physical circumstances is not necessarily determinative of whether the decedent assumed the risk of drowning. For example, the breach of a duty to provide statutorily required safety equipment may be " inextricable from the proximate cause of the damage." (Citation and punctuation omitted.) Holbrook v. Exec. Conference Center, 219 Ga.App. 104, 107 (2) (464 S.E.2d 398) (1995) (finding that a jury could determine that the absence of statutorily mandated safety equipment was the proximate cause of the decedent's drowning in the defendant's pool). See Alexander v. Harnick, 142 Ga.App. 816, 817 (2) (237 S.E.2d 221) (1977) (where the decedent drowned after she jumped from the defendant's houseboat into the water in an attempt to rescue her dog, and the defendant did not have any throwable life preservers on board, nor readily accessible life vests, as required by law, " a jury would not be precluded [802 S.E.2d 442] from finding that the absence of the safety equipment was the proximate cause of the decedent's death merely because she entered the water voluntarily" ). And in premises liability actions, the general rule is " that owners or operators of nonresidential swimming facilities owe an affirmative duty to exercise ordinary and reasonable care for the safety and protection of invitees swimming in the pool." Walker v. Daniels, 200 Ga.App. 150, 155 (1) (407 S.E.2d 70) (1991).
Appellants do not show, however, that Oglethorpe was under a statutory or common law duty to provide safety equipment to its students during an excursion to the beach, or that the ocean is analogous to a nonresidential swimming pool. Nor can we conclude that Oglethorpe became an insurer for the safety of its students by undertaking a study-abroad program, or that it was responsible for the peril encountered by Downes in that it transported him to the beach. Compare Alexander v. Harnick, 142 Ga.App. at 817 (3) (an issue of fact remained as to whether, by taking decedent onto the water without the statutorily required safety equipment, defendant helped to create her peril). Because he was a competent adult, Downes would have appreciated the specific risk of drowning posed by entering a body of water so inherently dangerous as the Pacific Ocean. As Downes voluntarily did so, Oglethorpe established that he assumed that risk. Although Downes's death was undeniably tragic, we are constrained to conclude that the trial court correctly granted Oglethorpe's motion for summary judgment.
2. The Appellants' other claims of error are moot.
Andrews and Rickman, JJ., concur.
[1]The evidence showed that " [a] rip current is a strong outflow or stream of water usually beginning at the beach, moving perpendicular to the beach, beginning with the neck and then terminating at some point beyond the surf line[.]"
[2]Fletemeyer's testimony is not explicit as to why pocket beaches are dangerous to swimmers, although, in the context of the line of questioning, his testimony implies that the physical characteristics of pocket beaches are associated with the formation of rip currents.
[3]The evidence did not show that Playa Ventanas, in particular, had an unusually high number of drownings.
[4]The Appellants also contend that the trial court erred in granting Oglethorpe's motion for summary judgment (1) because Oglethorpe owed a duty to exercise ordinary care for the safety of its students in the planning and implementation of its study-abroad program, and material issues of fact remain regarding Oglethorpe's negligence, (2) the exculpatory clause in the release agreement signed by Downes is not enforceable, and (3) gross negligence cannot be waived by an exculpatory clause, and material issues of fact remain as to whether Oglethorpe was grossly negligent.
Langlois v. Nova River Runners, Inc., 2018 Alas. LEXIS 31
Posted: February 6, 2019 | Author: Recreation Law | Filed under: Alaska, Legal Case, Paddlesports, Release (pre-injury contract not to sue), Rivers and Waterways | Tags: acknowledgment, alert, appendix, Canyon, Climbing, drowning, exculpate, Gym, Inherent Risks, insinuate, instructors, Notice, Public Policy, purported, Rafting, reasonable steps, recreational, recreational activity, rock, signature, signing, skilled, Summary judgment, training, trip, unrelated, waive, waived, Warning, Whitewater | Leave a comment
Vanessa L. Langlois, Personal Representative of the Estate of Stephen J. Morton, Appellant, v. Nova River Runners, Inc., Appellee.
Supreme Court No. S-16422, No. 1669
Supreme Court of Alaska
2018 Alas. LEXIS 31
March 21, 2018, Decided
NOTICE: MEMORANDUM DECISIONS OF THIS COURT DO NOT CREATE LEGAL PRECEDENT. SEE ALASKA APPELLATE GUIDELINES FOR PUBLICATION OF SUPREME COURT DECISIONS. ACCORDINGLY, THIS MEMORANDUM DECISION MAY NOT BE CITED FOR ANY PROPOSITION OF LAW, NOR AS AN EXAMPLE OF THE PROPER RESOLUTION OF ANY ISSUE.
PRIOR HISTORY: [*1] Appeal from the Superior Court of the State of Alaska, Third Judicial District, Anchorage, Pamela Scott Washington, Judge pro tem. Superior Court No. 3AN-15-06866 CI.
OVERVIEW: HOLDINGS: [1]-A release entitled defendant rafting company to wrongful
COUNSEL: Mara E. Michaletz and David K. Gross, Birch Horton Bittner & Cherot, Anchorage, for Appellant.
Howard A. Lazar, Scott J. Gerlach, and Luba K. Bartnitskaia, Delaney Wiles, Inc., Anchorage, for Appellee.
JUDGES: Before: Stowers, Chief Justice, Winfree, Maassen, Bolger, and Carney, Justices. Winfree, Justice, with whom Carney, Justice, joins, dissenting.
MEMORANDUM OPINION AND JUDGMENT*
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* Entered under Alaska Appellate Rule 214.
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The estate of a man who drowned on a rafting trip challenged the validity of the pre-trip liability release. The superior court granted summary judgment in favor of the rafting company. Because there were no genuine issues of material fact and the release was effective under our precedent, we affirm.
II. FACTS AND PROCEEDINGS
In May 2013 Stephen Morton took part in a whitewater rafting trip on Six Mile Creek near Hope. The trip was conducted by NOVA River Runners (NOVA). This case arises out of Morton's tragic death by drowning after his raft capsized.
A. The Release
Before embarking on a rafting trip, participants typically receive and sign [*2] NOVA's liability release (the Release). The Release is provided as a single two-sided document. One side is entitled "Participant's Acknowledgment of Risks" and begins with a definition of activities: "any adventure, sport or activity associated with the outdoors and/or wilderness and the use or presence of watercraft, including but not limited to kayaks, rafts, oar boats and glacier hiking and ice climbing equipment, including crampons, ski poles, climbing harnesses and associated ice climbing hardware." The Release then states:
Although the concessionaire has taken reasonable steps to provide you with appropriate equipment and/or skilled guides so you can enjoy an activity for which you may not be skilled, we wish to remind you this activity is not without risk. Certain risks cannot be eliminated without destroying the unique character of the activity.
The Release then provides a list of "some, but not all" of the "inherent risks," including "[m]y . . . ability to swim . . . and/or follow instructions" and "[l]oss of control of the craft, collision, capsizing, and sinking of the craft, which can result in wetness, injury, . . . and/or drowning." The Release next asks participants to [*3] affirm that they possess certain qualifications, including physical capability and safety awareness. The last section of the first side purports to waive liability for the negligent acts of NOVA and its employees. There is no designated space for signatures or initials on this side.
At the top of the other side, participants are asked to acknowledge that "[They] have read, understood, and accepted the terms and conditions stated herein" and that the agreement "shall be binding upon [the participant] . . . and [their] estate." No terms or conditions appear on this side. There are then three signature blocks where up to three participants can sign, with space to include an emergency contact, allergies, and medications.
Brad Cosgrove, NOVA's "river manager" for this trip, did not recall whether Morton read the Release before signing it, but stated that "[n]obody was rushed into signing" and that he "physically showed each participant" both sides of the Release. Bernd Horsman, who rafted with Morton that day, stated that he recalled "sign[ing] a document that briefly stated that you waive any liability in case something happens" but thought the document only had one side. He did not recall [*4] "someone physically show[ing]" the Release to him, but he wasn't rushed into signing it. Both Horsman's and Morton's signatures appear on the Release.
B. The Rafting Trip
The rafting trip consisted of three canyons. NOVA would routinely give participants the opportunity to disembark after the second canyon, because the third canyon is the most difficult. Morton did not choose to disembark after the second canyon, and his raft capsized in the third canyon. Cosgrove was able to pull him from the river and attempted to resuscitate him. NOVA contacted emergency services and delivered Morton for further care, but he died shortly thereafter.
C. Legal Proceedings
Morton's widow, Vanessa Langlois, brought suit as the personal representative of Morton's estate (the Estate) in May 2015 under AS 09.55.580 (wrongful death) and AS 09.55.570 (survival), requesting compensatory damages, plus costs, fees, and interest. The Estate alleged that NOVA was negligent and listed multiple theories primarily based on the employees' actions or omissions.
NOVA moved for summary judgment in November 2015, arguing that the Release barred the Estate's claims. NOVA supported its position with the signed Release and affidavits from NOVA's owner [*5] and Cosgrove. The Estate opposed and filed a cross-motion for summary judgment to preclude NOVA from relying on the Release. The parties then stipulated to stay formal discovery until the court had ruled on these motions but agreed on procedures for conducting discovery in the interim if needed. Pursuant to the stipulation, the parties deposed Horsman and filed supplemental briefing.
In June 2016 the superior court granted NOVA's motion for summary judgment and denied the Estate's, reasoning that the Release was valid under our precedent. This appeal followed. The Estate argues that the superior court erred in granting summary judgment because the Release did not satisfy the six elements of our test for a valid waiver.
"We review grants of summary judgment de novo, determining whether the record presents any genuine issues of material fact."1 "If the record fails to reveal a genuine factual dispute and the moving party was entitled to judgment as a matter of law, the trial court's grant of summary judgment must be affirmed."2 "Questions of contract interpretation are questions of law that we review de novo . . . ."3
1 Donahue v. Ledgends, Inc., 331 P.3d 342, 346 (Alaska 2014) (citing Hill v. Giani, 296 P.3d 14, 20 (Alaska 2013)).2 Id. (citing Kelly v. Municipality of Anchorage, 270 P.3d 801, 803 (Alaska 2012)).3 Sengul v. CMS Franklin, Inc., 265 P.3d 320, 324 (Alaska 2011) (citing Norville v. Carr-Gottstein Foods Co., 84 P.3d 996, 1000 n.1 (Alaska 2004)).
IV. DISCUSSION
Alaska Statute 09.65.290 provides that "[a] person who [*6] participates in a sports or recreational activity assumes the inherent risks in that sports or recreational activity and is legally responsible for . . . death to the person . . . that results from the inherent risks in that sports or recreational activity." The statute does not apply, however, to "a civil action based on the . . . negligence of a provider if the negligence was the proximate cause of the . . . death."4 Thus, in order to avoid liability for negligence, recreational companies must supplement the statutory scheme by having participants release them from liability through waivers.
4 AS 09.65.290(c).
Extrapolating from principles articulated in three earlier cases,5 we recently adopted, in Donahue v. Ledgends, Inc., a six-element test for finding effective waiver:
(1) the risk being waived must be specifically and clearly set forth (e.g. death, bodily injury, and property damage); (2) a waiver of negligence must be specifically set forth using the word "negligence"; (3) these factors must be brought home to the releasor in clear, emphasized language . . . ; (4) the release must not violate public policy; (5) if a release seeks to exculpate a defendant from liability for acts of negligence unrelated [*7] to inherent risks, the release must suggest an intent to do so; and (6) the release agreement must not represent or insinuate standards of safety or maintenance.6
The Estate argues that NOVA's release does not satisfy this test. We analyze these six elements in turn and conclude that NOVA's Release is effective.7
5 See Donahue, 331 P.3d at 346-48 (discussing Ledgends, Inc. v. Kerr, 91 P.3d 960 (Alaska 2004); Moore v. Hartley Motors, Inc., 36 P.3d 628 (Alaska 2001); and Kissick v. Schmierer, 816 P.2d 188 (Alaska 1991)).6 Id. at 348. In Donahue, a woman sued a rock climbing gym after she broke her tibia by falling a few feet onto a mat at the instruction of an employee, and we concluded that the release barred her negligence claim. Id. at 344-45.7 Our review of the record reveals no genuine issues of material fact with respect to the existence and terms of the Release.
A. The Release Specifically And Clearly Sets Forth The Risk Being Waived.
The Estate first argues that the Release was not a "conspicuous and unequivocal statement of the risk waived" because the Release was two-sided and the sides did not appear to incorporate each other.8 For support, the Estate cites an "analogous" Uniform Commercial Code (UCC) case from Florida for the proposition that "a disclaimer is likely inconspicuous where 'there is nothing on the face of the writing to call attention to the back of the instrument.'"9 The Estate points out that the release in Donahue had two separate pages, and the participant initialed the first page and signed the second.10 The Estate also identifies Horsman's confusion about whether the Release had one or two sides as evidence that the Release was not conspicuous, raising possible issues of material fact about whether Morton [*8] would have been aware of the other side or whether Cosgrove actually showed each participant both sides.11
8 See Donahue, 331 P.3d at 348.9 The Estate quotes Rudy's Glass Constr. Co. v. E. F. Johnson Co., 404 So. 2d 1087, 1089 (Fla. Dist. App. 1981) (citing Massey-Ferguson, Inc. v. Utley, 439 S.W.2d 57 (Ky. 1969); Hunt v. Perkins Mach. Co., 352 Mass. 535, 226 N.E.2d 228 (Mass. 1967)).10 See Donahue, 331 P.3d at 345.11 The Estate raises these arguments outside the context of Donahue, but we address them here.
We note that Participants in a recreational activity need not read a release for it to be binding if the language of the release is available to them.12 We conclude that NOVA's Release was sufficiently clear, even without an initial block on the first side. The signature page stated, "I have read, understood, and accepted the terms and conditions stated herein," but no terms and conditions appeared on this side. A reasonable person, after reading the word "herein," would be on notice that the document had another side.
12 See Donahue, 331 P.3d at 349 (citing Lauvetz v. Alaska Sales & Serv., 828 P.2d 162, 164-65 (Alaska 1991)).
The Estate also argues that NOVA's Release "does not specifically and clearly set forth the risk that the NOVA instructors may have been negligently trained or supervised, or that they may give inadequate warning or instructions." But NOVA's Release, like the release in Donahue, "clearly and repeatedly disclosed the risk of the specific injury at issue"13 — here, death by drowning. Like the plaintiff in Donahue, the Estate, "[r]ather than focusing on [the] injury[,] . . . focuses on its alleged cause,"14 i.e., negligent training or instruction. But the [*9] Release covers this risk as well; it indemnifies the "Releasees" in capital letters from liability for injury or death, "whether arising from negligence of the Releasees or otherwise," and specifically defines "Releasees" to include "employees." In Donahue, we also observed that "[i]t would not be reasonable to conclude that [the defendant] sought a release only of those claims against it that did not involve the acts or omissions of any of its employees."15 Thus, the Estate's argument that NOVA's Release "does not specifically and clearly set forth the risk that the NOVA instructors may have been negligently trained or supervised" is not persuasive.
13 Id. at 348.14 Id. at 349.15 Id.
B. The Release Uses The Word "Negligence."
Donahue provides that "a waiver of negligence must be specifically set forth using the word 'negligence.'"16 The Estate argues that the Release's "references to negligence are inconsistent," and therefore it does not fulfill our requirement that a release be "clear, explicit[,] and comprehensible in each of its essential details."17 But we concluded in Donahue that similar language satisfied this element.
16 Id. at 348.17 Kissick v. Schmierer, 816 P.2d 188, 191 (Alaska 1991) (quoting Ferrell v. S. Nev. Off-Road Enthusiasts, Ltd., 147 Cal. App. 3d 309, 195 Cal. Rptr. 90, 95 (Cal. App. 1983)).
The release in Donahue provided: "I hereby voluntarily release, forever discharge, and agree to [*10] indemnify and hold harmless the [defendant] from any and all claims, demands, or causes of action, . . . including any such claims which allege negligent acts or omissions of [the defendant]."18 We emphasized that "[t]he phrase 'any and all claims' is thus expressly defined to include claims for negligence."19
18 Donahue, 331 P.3d at 345.19 Id. at 349.
Here, the Release reads, in relevant part:
I . . . HEREBY RELEASE NOVA . . . WITH RESPECT TO ANY AND ALL INJURY, DISABILITY, DEATH, or loss, or damage to persons or property incident to my involvement or participation in these programs, WHETHER ARISING FROM NEGLIGENCE OF THE RELEASEES OR OTHERWISE, to the fullest extent permitted by law.
I . . . HEREBY INDEMNIFY AND HOLD HARMLESS all the above Releasees from any and all liabilities incident to my involvement or participation in these programs, EVEN IF ARISING FROM THEIR NEGLIGENCE to the fullest extent permitted by law.
NOVA's Release uses the word "negligence" twice, and there is no material difference between the "any and all claims" language used in Donahue and the "any and all liabilities" language used here. We therefore conclude that the Release specifically set forth a waiver of negligence.
C. The Release Uses Simple Language And [*11] Emphasized Text.
Donahue provides that The intent of a release to waive liability for negligence "must be brought home to the releasor in clear, emphasized language."20 The Estate argues that the Release fails to use clear language or adequately define the "activity" it covered and thus does not waive liability for negligence. This argument does not withstand the application of Donahue.
20 Id. at 348.
In Donahue, the clauses addressing negligence "[did] not appear to be 'calculated to conceal'" and were "in a logical place where they [could not] be missed by someone who reads the release."21 Here, the Release uses capital letters to highlight the clauses waiving negligence. Though the clauses fall near the bottom of the page, they were certainly "in a logical place where they [could not] be missed by someone who reads the release" from start to finish, and thus under Donahue they were not "calculated to conceal." And though these clauses contain some legalese, " releases should be read 'as a whole' in order to decide whether they 'clearly notify the prospective releasor . . . of the effect of signing the agreement.'"22 The list of inherent risks uses very simple language: "cold weather," "[m]y sense of balance," [*12] "drowning," "[a]ccidents or illnesses," and "[f]atigue, chill and/or dizziness."
21 Id. at 350.22 Id. at 351 (quoting Kissick, 816 P.2d at 191).
The Release extends to other activities such as "glacier hiking and ice climbing," but any ambiguity is cleared up by the explicit list of inherent risks relating to whitewater rafting. We therefore conclude that the Release brings home to the reader its intent to waive liability for negligence using simple language and emphasized text.
D. The Release Does Not Violate Public Policy.
Donahue requires that "the release must not violate public policy."23 Citing no legal authority, the Estate asserts that NOVA's waiver "unquestionably violates public policy due to its vast scope."
"Alaska recognizes that recreational releases from liability for negligence are not void as a matter of public policy, because to hold otherwise would impose unreasonable burdens on businesses whose patrons want to engage in high-risk physical activities."24 In evaluating public policy arguments in the context of liability waivers, we have previously considered "[o]f particular relevance . . . the type of service performed and whether the party seeking exculpation has a decisive advantage in bargaining strength because of the essential nature [*13] of the service."25 The type of service likely to inspire additional scrutiny on public policy grounds is "a service of great importance to the public, which is often a matter of practical necessity for some members of the public.'"26 Using this analysis, we deemed an all-terrain vehicle safety course "not an essential service," meaning that "the class providers did not have a 'decisive advantage of bargaining strength' in requiring the release for participation in the class."27
24 Id. at 348 n.34 (citing Kissick, 816 P.2d at 191).25 Moore v. Hartley Motors, Inc., 36 P.3d 628, 631 (Alaska 2001) (citing Municipality of Anchorage v. Locker, 723 P.2d 1261, 1265 (Alaska 1986)).26 Id. (quoting Locker, 723 P.2d at 1265).27 Id. at 631-32 (citing Locker, 723 P.2d at 1265).
Similarly, here, whitewater rafting, far from being a matter of practical necessity, is an optional activity, meaning that under Moore v. Hartley Motors, Inc., NOVA did not have an advantage in bargaining strength. We therefore conclude that the Release does not violate public policy.
E. The Release Suggests An Intent To Exculpate NOVA From Liability For Employee Negligence.
Donahue provides that "if a release seeks to exculpate a defendant from liability for acts of negligence unrelated to inherent risks, the release must suggest an intent to do so."28 But regardless of whether acts of negligence are related to inherent risks, this requirement is met when "the injury and its alleged causes are all expressly covered [*14] in the release."29 The Estate argues that the Release does not suggest an intent to exculpate NOVA from liability for employee negligence. We disagree.
As we have explained, the Release specifically covered employee negligence by including "employees" in the clause releasing NOVA from liability for negligence. Because the injury — death by drowning — and its alleged cause — employee negligence — are expressly included in the Release, it satisfies this Donahue element.30
30 We further observe that the Release's list of inherent risks tracks some of the Estate's allegations about employee negligence. For example, the Estate alleged that NOVA "fail[ed] to preclude those participants who were not qualified to handle the rafting trip," but the Release discloses that a participant's "ability to swim . . . and/or follow instructions" was an inherent risk of the trip.
The Estate correctly notes that the Donahue release specifically covered the risk of "inadequate warnings or instructions" from employees, unlike the general reference to employee negligence here.31 Ideally NOVA's Release would include a more detailed description of the types of negligence it covers, such as "employee negligence" and "negligent training." But doing so is not a requirement under Donahue. We therefore conclude that the Release suggests an intent to exculpate NOVA from liability for acts of employee negligence.32
31 Donahue, 331 P.3d at 352.32 We therefore do not reach the question whether employee negligence is unrelated to inherent risks of guided whitewater rafting. See id. at 348.
F. The Release Does Not Represent Or Insinuate Standards Of Safety Or Maintenance.
Donahue provides that "the release agreement must not represent or insinuate standards of safety or maintenance."33 The [*15] Estate argues that the Release violates this element with the following statement: "the concessionaire has taken reasonable steps to provide you with appropriate equipment and/or skilled guides so you can enjoy an activity for which you may not be skilled." But this statement is introduced by the word "[a]lthough" and falls within the same sentence as the disclosure that "this activity is not without risk." This sentence is immediately followed by a sentence indicating that "[c]ertain risks cannot be eliminated without destroying the unique character of the activity." And the Release goes on to list 11 risks inherent in whitewater rafting. Reading the Release as a whole, we cannot conclude that it represented or insinuated standards of safety or maintenance.
We noted that the release in Donahue "highlight[ed] the fallibility of [the defendant's] employees, equipment, and facilities."34 Here, though the Release does not — and was not required to under the Donahue elements — go that far, it does list as inherent risks "[l]oss of control of the craft" and "sinking of the craft," raising the possibility of human error, fallible equipment, and adverse forces of nature. The Release also [*16] makes various references to the isolated, outdoor nature of the activity — listing "[c]hanging water flow," "inclement weather," and the "remote" location as inherent risks.
The Estate cites Ledgends, Inc. v. Kerr35 in support of its argument that the Release impermissibly both represents a standard of maintenance and tries to disclaim liability for failing to adhere to it. In Kerr, we concluded that a release that contained statements such as "[w]hile we try to make the [premises] safe" and "[w]hile we strive to provide appropriate equipment for people of all abilities and to keep the equipment in good condition" was invalid because, read as a whole, it did "not conspicuously and unequivocally alert" participants of its scope.36 We went on to hold that "[t]he representations in the release regarding the [defendant]'s own efforts toward safety suggest that the release was predicated on a presumption that the [defendant] would strive to meet the standards of maintenance and safety mentioned in the release."37
35 91 P.3d 960 (Alaska 2004). Like Donahue, Kerr also arose out of an injury at an indoor rock climbing gym. Id. at 961.36 Id. at 963-64.37 Id. at 963.
But the Release in question here is dissimilar in key ways. Compared to the release in Kerr, which contained language representing safety standards throughout,38 NOVA's Release [*17] contains only a single half-sentence to that effect, adequately disclaimed: "Although the concessionaire has taken reasonable steps to provide you with appropriate equipment and/or skilled guides so you can enjoy an activity for which you may not be skilled, this activity is not without risk. Certain risks cannot be eliminated without destroying the unique character of the activity." And the release in Kerr was much broader — promising to "try to make the [premises] safe" — than NOVA's Release, which promises merely that the company takes "reasonable steps to provide . . . appropriate equipment and/or skilled guides" while acknowledging in context that these precautions could not mitigate all the risks posed by a whitewater rafting trip. The Estate's reliance on Kerr is thus misplaced, and we conclude that the Release does not represent or insinuate standards of safety or maintenance.
38 Id. at 963-64.
Because it satisfies the six Donahue elements, the Release effectively waived NOVA's liability for negligence.
For the reasons explained above, we AFFIRM the superior court's grant of summary judgment in favor of NOVA.
DISSENT BY: WINFREE
WINFREE, Justice, with whom CARNEY, Justice, joins, dissenting.
I respectfully [*18] dissent from the court's decision affirming summary judgment in this case. I cannot agree with the court's conclusions that the self-titled "Participant's Acknowledgement [sic] of Risks"1 form actually is something other than what it calls itself — i.e., a "Release" form — and that it constitutes a valid release barring the Morton estate's claims against NOVA River Runners.2 I would reverse the superior court's decision, hold that the purported release is not valid under our precedent, and remand for further proceedings.
1 The document is referred to by its title throughout, but the spelling has been changed to conform to our preferred style.2 The Participant's Acknowledgment of Risks form signed by Stephen Morton is Appendix A to this dissent.
The court's application of the six factors we approved in Donahue v. Ledgends, Inc.3 ignores our prior case law from which these factors derived. Most salient to the factual situation and document at issue here is Ledgends, Inc. v. Kerr, affirming a superior court decision denying summary judgment based on a release document — titled "Release of Liability — Waiver of Claims" — that was far clearer, and certainly not less clear, than the purported release in this case.4 And although our prior cases about recreational releases have not focused on a document's title, a title alerts a reader to the document's purpose. In each case from which the Donahue factors derived, the [*19] document's title clearly told the signer that the document was a release or that the signer was waiving legal claims. The release in Donahue was titled "Participant Release of Liability, Waiver of Claims, Assumption of Risks, and Indemnity Agreement — Alaska Rock Gym."5 In Kerr the form was a "Release of Liability — Waiver of Claims."6 The rider-safety school in Moore v. Hartley Motors, Inc. presented the participant a form that instructed "You Must Read and Sign This Consent Form and Release."7 Only in Kissick v. Schmierer did the title of the document not contain the word "release," but that form, provided by the U.S. Air Force, was a "Covenant Not to Sue and Indemnity Agreement"8 — a title giving notice that the signer was surrendering legal rights before participating in the activity. In contrast, an "Acknowledgment of Risks" in no way alerts a reader of the possibility of waiving all negligence related to an activity. A title indicating that a document will release or waive legal liability surely is a useful starting point for evaluating the validity of a recreational release.
3 331 P.3d 342, 348 (Alaska 2014).4 91 P.3d 960, 961 (Alaska 2004). The release language in Kerr was included as an appendix to our opinion. Id. at 963-64. The rejected release from Kerr is Appendix B to this dissent for ease of comparison with the purported release in this case.5 331 P.3d at 344.6 91 P.3d at 961.7 36 P.3d 628, 632 (Alaska 2001).8 816 P.2d 188, 190 (Alaska 1991).
Consistent with the principle that the purpose of contract interpretation is to give effect to the [*20] parties' reasonable expectations,9 our prior cases require us to consider the agreement as a whole10 and to resolve "any ambiguities in pre-recreational exculpatory clauses . . . against the party seeking exculpation."11 The agreement as a whole "must 'clearly notify the prospective releasor or indemnitor of the effect of signing the release.'"12 Applying these directives to the Acknowledgment of Risks form, I conclude the document does not clearly apprise participants that they are surrendering all claims for negligence by NOVA, particularly claims based on inadequate training.
9 See Peterson v. Wirum, 625 P.2d 866, 872 n.10 (Alaska 1981). A release is a type of contract. See Moore, 36 P.3d at 630-31.10 Kerr, 91 P.3d at 962.11 Id. at 961 (citing Kissick, 816 P.2d at 191).12 Id. at 962 (quoting Kissick, 816 P.2d at 191).
As can be seen in Appendix A, the Acknowledgment of Risks form's first indication that it might be anything more than what its title suggests appears approximately three-fourths of the way down a densely printed page that, up to that point, has mentioned only "inherent risks." There the form asks participants for a self-evaluation of their abilities. After a line break, the form asks participants to certify that they are "fully capable of participating in these activities" and will "assume full responsibility for [themselves]." Then, without another line break or any heading to signify that the form is transitioning [*21] into a liability release rather than an acknowledgment of risks, the document sets out "release" language. While parts of this section are in capital letters, they are not in bold or otherwise set off from the dense text surrounding them. In short, considering the document as a whole, the apparent intent is to hide the release language at the very bottom of a dense, one-page document with a title completely unrelated to release of liability.
Additionally, the signature page in no way alerts the reader that operative release language is contained on another page, presumably the back side of that page. The short paragraph at the top, which the court relies on to hold that the form gave participants adequate notice of the release language, says only, "I have read, understood, and accepted the terms and conditions stated herein and acknowledge that this agreement shall be binding upon myself . . . ." While the court concludes that a reasonable person "would be on notice that the document had another side" solely because of the word "herein," the court fails to explain its conclusion. In fact, Morton's companion who was an experienced adventure traveler as well, Horsman, remembered the document [*22] consisting of only one page. As he put it, "[T]he way I read it is 'conditions herein.' Well, there's not much herein . . . ."
In addition to the document's overall structure, the Acknowledgment of Risks form fails to comply with several standards we previously have applied to recreational activity releases. Specifically, the mere inclusion of the word "negligence" in the release language is insufficient to make the Acknowledgment of Risks form a full release of all claims. The release we held invalid in Kerr also used the word "negligence," but we agreed with the superior court that "[w]hen read as a whole" the purported release did "not clearly and unequivocally express an intent to release the Gym for liability for its own future negligence" with respect to all matters referenced in the release.13
The superior court's Kerr decision, which we adopted and published as expressing our own view, highlighted the ineffectiveness of a release that did not "clearly alert climbers that they [were] giving up any claims that the Gym failed to meet the standards of maintenance and safety that the Gym specifically indicate[d] in the release that it [would] strive to achieve and upon which the release [*23] [might] have been predicated."14 This is precisely what the Morton estate agues here: the Acknowledgment of Risks form promised participants that NOVA would provide adequately skilled guides but did not alert participants that they were giving up claims based on NOVA's negligent failure to provide adequately skilled guides.
NOVA indicated in its Acknowledgment of Risks form that it had "taken reasonable steps to provide [a participant] with appropriate equipment and/or skilled guides so [the participant] can enjoy an activity for which [he] may not be skilled." This is a representation that NOVA's guides were adequately skilled to provide participants an enjoyable trip — not one fraught with danger.15 The Morton estate alleged in its complaint that NOVA's guides were inadequately trained and did not properly screen participants to preclude those who were unable "to handle the rafting trip" from participating. Both specific allegations related to negligent training or failure to provide guides who were adequately skilled to assist unskilled participants to safely complete the trip. The Acknowledgment of Risks form, like the defective release in Kerr, can hardly be said to give a participants [*24] notice that the participants were surrendering claims related to negligent training or supervision.16
15 The release could be read as requiring NOVA to provide either "appropriate equipment" or "skilled guides" but not both. But a reasonable person with no skill in rafting would almost certainly infer that NOVA intended to provide both appropriate equipment and skilled guides on a trip with Class V rapids.16 See Kerr, 91 P.3d at 963 (holding that release did not bar negligent maintenance claim because release promised to "strive to achieve" safety standards).
The court concludes otherwise because the express statement that NOVA would provide skilled guides is in a sentence that also says rafting "is not without risk" and the Acknowledgment of Risks form then lists several inherent risks of rafting. But none of the listed risks is in any way related to unskilled guides or negligence in screening other participants.17 To the contrary, the enumerated risks focus on environmental and personal factors and include natural conditions, such as "[c]hanging water flow," "presence of marine life," and adverse weather; personal characteristics of the participant like "sense of balance, physical coordination, ability to swim, walk and/or follow instructions" and "[f]atigue, chill and/or dizziness, which may diminish [the participant's] reaction time and increase the risk of accident"; and the risk of an accident "occurring in remote places where there are no available medical facilities." The Acknowledgment of Risks form does not include — as the release in Donahue did — risks related to other participants' "limits"18 or to employees' "inadequate warnings [*25] or instructions" that might lead to injury.19 In other words, the Acknowledgment of Risks form did not meet the fourth characteristic of a valid release — it did not suggest an intent to release NOVA from liability for negligent acts unrelated to inherent risks.20
17 In contrast, the valid release we discussed in Donahue explicitly listed in the inherent risks of climbing several types of possible negligence: "improperly maintained equipment," "displaced pads or safety equipment, belay or anchor or harness failure," "the negligence of other climbers or spotters or visitors or participants who may be present," "participants giving or following inappropriate 'Beta' or climbing advice or move sequences," and "others' failure to follow the rules of the [Rock Gym] . . . ." Donahue v. Ledgends, Inc., 331 P.3d 342, 350 n.46 (Alaska 2014) (alteration in original).18 Id.19 See id. at 352 (holding that release at issue "expressly covered" both the type of injury "and its alleged causes," namely "'inadequate warnings or instructions' from Rock Gym instructors").20 The court states that it "do[es] not reach the question of whether employee negligence is unrelated to inherent risks of guided whitewater rafting." It is hard to see how negligent training or providing inadequately skilled guides would ever be related to an inherent risk of guided whitewater rafting.
I also disagree with the court's holding that a release is necessarily valid when it sets out the risk of a specific injury — death by drowning in this case — but not its specific cause — negligent training and the provision of unskilled guides. In Donahue we rejected the participant's argument that the release did not specifically and clearly set out the risks being waived because the release not only warned of a risk of falling but also cautioned that instructors and other employees could, through their negligence, cause falls or other types of injury.21 Here the only mention of employee negligence, buried at the bottom of a densely written, single-spaced document, is a description only in the most general terms. This type of general waiver simply does not specifically and clearly set out a waiver of the risk on which the Morton estate's claim is based. The Morton estate alleges that [*26] Morton's death by drowning was not due solely to the inherent risks of whitewater rafting the release listed, but rather to the provision of unskilled guides who did not adequately screen other participants. The document's general language fails to specifically and clearly set out the risk of negligence alleged here.
21 Donahue, 331 P.3d at 348-49.
Today's decision allows intentionally disguised pre-recreational activity exculpatory releases and effectively lowers the bar for their validity. Because the release does not meet the standards adopted in the precedent Donahue relied on — and because if the "Release" in Kerr was an invalid release, the "Participant's Acknowledgment of Risks" Morton signed must be an invalid release — I respectfully dissent from the court's opinion concluding otherwise.
A fly-fishing lawsuit, a first.
Posted: January 14, 2019 | Author: Recreation Law | Filed under: Assumption of the Risk, Montana, Paddlesports, Whitewater Rafting | Tags: abnormally, amend, Assumption of risk, bridge, drowning, emotional distress, Fishing, Float Trip, Fly Fishing, genuine, Inherent Risks, Issue of Material Fact, James Yeager, Jim Yeager Outfitters, loss of consortium, matter of law, negligence claim, Personal Flotation Device, PFD, provider's, Raft, reasonable care, Recreation, recreational, recreational opportunity, recreationists, River, secondary, severe, Skier, skiing, Sport, Summary judgment, unconstitution-ally vague, Whitewater, Wyoming Act's | 3 Comments
Montana Federal Court covers a lot of interesting legal issues for the OR industry in this decision. However, defendant is in a tough position because the statutes provide no help, he can't use a release and probably like most fly-fishing guides; he believes he won't be sued.
McJunkin v. James Yeager d/b/a Jim Yeager Outfitters, 2018 U.S. Dist. LEXIS 169321
State: Montana
Plaintiff: Charles P. McJunkin, deceased, by and through his executor and personal representative, Rhett McJunkin, and Rhett McJunkin, executor and personal representative, on behalf of the heirs of Charles P. McJunkin
Defendant: James Yeager d/b/a Jim Yeager Outfitters
Plaintiff Claims: negligence, negligent infliction of emotional distress, and loss of consortium
Defendant Defenses: Montana Recreation Responsibility Act
Holding: Split, mostly for the defendant
At the end of a float fly fishing trip, the boat hit a rock throwing the deceased into the river. While attempting to get the deceased back in the boat the deceased partner fell in. The deceased yelled to grab her because she could not swim. The defendant grabbed the girlfriend and maneuvered the boat through rapids.
The deceased drowned, (supposedly). Neither were wearing PFDs.
Yeager is a professional fishing guide and outfitter. On July 17, 2014, Yeager took a paying client, Charles P. McJunkin on a guided fishing trip in a raft on the Stillwater River. As Yeager was guiding and operating the raft, McJunkin fell into the river and drowned. McJunkin was 81 years old at the time of his death.
McJunkin had gone on similar guided fishing trips with Yeager for approximately 20 years. In fact, in the week preceding the July 17, 2014 accident, McJunkin had floated and fished the Stillwater River three times with Yeager. On each occasion, Yeager put-in at the Johnson Bridge Fishing Access, and used the Swinging Bridge Fishing Access Site for a take-out at the end of the day. The Swinging Bridge take-out is approximately one-quarter mile above a set of rapids known as the Beartooth Drop. Yeager had never floated through the Beartooth Drop with McJunkin.
On the date of the accident, Yeager was guiding McJunkin and his partner, Julia Garner ("Garner"). The plan was to again float from Johnson Bridge to the Swinging Bridge take-out. The river conditions encountered by Yeager that day were characteristic of, and consistent with conditions he previously encountered on that stretch of the river. Yeager approached the Swinging Bridge take-out in the same manner as he had on the three earlier days of fishing. As he approached the take-out, the raft crossed an underwater shelf of rocks. When the rear of the raft passed the shelf, the boat rocked and McJunkin fell into the water. Although the raft was equipped with personal floatation devices (PFDs), McJunkin was not wearing one at the time.
McJunkin swam toward the raft, and Yeager attempted to position the raft so that McJunkin could grab ahold of the side. During this process, the party floated past the Swinging Bridge take-out. To complicate matters further, as Yeager attempted to pull McJunkin into the raft, Garner fell into the water. The parties dispute what caused Garner's fall. Plaintiffs contend Yeager accidentally hit her with an oar. Yeager indicated he didn't know what caused her to fall in, testifying "I don't know if I hit a rock or a wave or whatever, Julie went in." Garner yelled to Yeager that she could not swim. Yeager made the split-second decision to let go of McJunkin and attempt to save Garner, fearing she would drown otherwise. Yeager was able to pull her back into the raft as they entered the Beartooth Drop. Meanwhile, McJunkin lost contact with Yeager and the raft and floated through the rapid. He ultimately did not survive.
Only the legal issues affecting fly fishing or the outdoor industry will be reviewed. This decision is a result of both parties filing motions for summary judgment, so there is no chronological hierarchy of how the decision is written. Each motion is tackled by the judge in the order to make the following arguments more manageable.
A few things to remember. Montana does not allow an outfitter or guide to use a release. See Montana Statutes Prohibits Use of a Release.
Both parties filed motions concerning the Montana Recreation Responsibility Act (MRRA). The MRRA is similar to the Wyoming Recreational Safety Act, both of which are solely assumption of the risk statutes and weak overall. The plaintiff argued the MRRA was unconstitutional on several grounds, all of which were denied. The defendant argued the MRRA should bar the plaintiff's claims which were also denied.
The first issue was inherent risks under the MRRA are not defined per activity or in general.
Under the plain language of the MRRA, a risk must satisfy two requirements to constitute an "inherent risk" and thus fall within the Act's protection. There must be (1) a danger or condition that is characteristic of, or intrinsic to the activity, and (2) the danger or condition must be one that cannot be prevented by the use of reasonable care. Mont. Code Ann. § 27-1-752(2).
This leaves a monstrous gap in the protection it affords, in fact, does not afford outfitters and guides in Montana any real protection.
The court did not agree that the MRRA was broad enough to protect the defendant in this case.
Here, there are genuine issues of material fact regarding whether the risk encountered by McJunkin was an inherent risk to the sport of float fishing, or whether Yeager could have prevented the risk using reasonable care. Yeager's expert opined that drowning is an inherent risk of floating in a raft on a river, and McJunkin's death was a result of that inherent risk. But Plaintiffs' expert states the risk of drowning can be prevented by the use of reasonable care. Plaintiffs' expert also opined that Yeager increased the risks to McJunkin, and failed to adhere to industry standards by not taking basic safety precautions and not having a plan or equipment to retrieve McJunkin from the water.
Because there was a genuine issue of material fact (a mix of plausible opinions) the MRRA was not broad or strong enough to stop the plaintiff's claims and the defendant's motion failed.
The plaintiff argued the MRRA was void because it was vague, it did not define inherent risk.
The void-for-vagueness doctrine chiefly applies to criminal statutes, but can apply to civil laws as well. Civil statutes, however, generally receive less exacting vagueness scrutiny. The United States Supreme Court has held "[t]o find a civil statute void for vagueness, the statute must be so vague and indefinite as really to be no rule or standard at all." The Montana Supreme Court has similarly declared that a statute is unconstitutionally vague on its face only if it is shown "that the statute is vague 'in the sense that no standard of conduct is specified at all.'" "[P]erfect clarity and precise guidance are not required." A statute is not vague "simply because it can be dissected or subject to different interpretations."
The plaintiff also argued that because the MRRA did not define risk that it was void.
A person of common intelligence can understand the risks associated with river sports or activities. There is no indication McJunkin would not have been able to appreciate such risks, including the potential risk involved in floating and fishing. Indeed, in their depositions Plaintiffs were able to articulate risks associated with floating on a river, such as falling out of the boat and drowning.
The plaintiff argued they should be able to sue for negligent infliction of emotional distress ("NEID").
To constitute 'serious' or 'severe,' the emotional distress must be 'so severe no reasonable person could be expected to endure it.'" The question of whether the threshold level of emotional dis-tress can be found is for the Court to determine. ("It is for the court to determine whether on the evidence severe [serious] emotional distress can be found; it is for the jury to determine whether, on the evidence, it has in fact existed.").
In Feller, the Montana Supreme Court considered several factors in determining whether there is sufficient evidence of severe emotional distress, including: (1) whether the plaintiff had any physical manifestations of grief; (2) whether counseling was sought or recommended; (3) whether the plaintiff took medication or the use of medication dramatically increased; (4) whether the plain-tiff had continuous nights of sleeplessness or days without appetite; (5) whether the plaintiff maintained close relationships with family members and friends; (6) the duration of the emotional dis-tress; and (7) the circumstances under which the infliction incurred, including whether the plaintiff witnessed the distressing event.
The plaintiff also argued they should be able to sue for loss of consortium.
Montana law recognizes loss of consortium claims by an adult child of an injured parent. In Stucky, the Montana Supreme Court held an adult child must meet the following two-part test to establish a claim for loss of parental consortium: "1) a third party tortuously caused the parent to suffer a serious, permanent and disabling mental or physical injury compensable under Montana law; and 2) the parent's ultimate condition of mental or physical impairment was so overwhelming and severe that it has caused the parent-child relationship to be destroyed or nearly destroyed."
In establishing a loss of parental consortium claim, the plaintiff may present evidence of the following factors, which the jury may consider in determining both whether the two-part test has been satisfied, and what damages are appropriate: "the severity of injury to the parent; the actual effect the parent's injury has had on the relationship and is likely to have in the future; the child's age; the nature of the child's relationship with the parent; and the child's emotional, physical and geographic characteristics."
The court then looked at the issue of abnormally dangerous. A finding of that an activity is abnormally dangerous brings more damages and fewer requirements to prove part of the negligence of the defendant.
"Whether an activity is abnormally dangerous is a question of law." No court has held float fly fishing is an abnormally dangerous activity, and this Court declines Plaintiffs' invitation to be the first to do so.
A statute that protects defendants based on assumption of the risk does so because it identifies specific risk and broadens the definitions of what an inherent risk is. An example would be the Colorado Skier Safety Act. That act describes the inherent risk of skiing and then adds dozens of more risk, which are beyond the normal scope of inherent.
Both the MRRA and the Wyoming Recreational Safety Act statutorily defines the common law but does nothing to broaden or strengthen the common law. They could better be defined as politically pandering, an attempt by a politician to make constituents feel better by giving them something, which, in reality, has no value.
The fly-fishing outfitter was caught in Montana's lack of available defenses, no statutory protection and no availability of a release. He might be able to strengthen his defenses by having his clients sign an Assumption of the Risk Document. He also might offer them PFDs.
Furthermore, remember in most whitewater or cold-water deaths drowning is not the cause of the death. Most people die of a heart attack. risk or Wikipedia: Cold Shock Response.
Posted: January 7, 2019 | Author: Recreation Law | Filed under: Assumption of the Risk, Legal Case, Montana, Paddlesports, Rivers and Waterways | Tags: abnormally, amend, Assumption of risk, bridge, drowning, emotional distress, Fishing, Float Trip, Fly Fishing, genuine, Inherent Risks, Issue of Material Fact, James Yeager, Jim Yeager Outfitters, loss of consortium, matter of law, negligence claim, Personal Flotation Device, PFD, provider's, Raft, reasonable care, Recreation, recreational, recreational opportunity, recreationists, River, secondary, severe, Skier, skiing, Sport, Summary judgment, unconstitution-ally vague, Whitewater, Wyoming Act's | Leave a comment
Charles P. Mcjunkin, deceased, by and through his executor and personal representative, Rhett Mcjunkin, and Rhett Mcjunkin, executor and personal representative, on behalf of the heirs of Charles P. Mcjunkin, Plaintiffs, vs. James Yeager d/b/a Jim Yeager Outfitters, Defendant.
CV 17-12-BLG-TJC
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA, BILLINGS DIVISION
September 28, 2018, Decided
September 28, 2018, Filed
COUNSEL: [*1] For Charles P. McJunkin, deceased, by and through his executor and personal representative, Rhett McJunkin, Rhett McJunkin, executor and personal representative, on behalf of the heirs of Charles P. McJunkin, Plaintiffs: Philip L. McGrady, LEAD ATTORNEY, McGRADY LAW, Whitefish, MT.
For James Yeager, doing business as, Jim Yeager Outfitters, Defendant: Ross Daniel Tillman, LEAD ATTORNEY, John M. Newman, BOONE KARLBERG, P.C., Missoula, MT.
JUDGES: TIMOTHY J. CAVAN, United States Magistrate Judge.
OPINION BY: TIMOTHY J. CAVAN
Rhett McJunkin, as personal representative of the estate of Charles P. McJunkin, and on behalf of the heirs of Charles P. McJunkin ("Plaintiffs"), brings this action against Defendant James Yeager, doing business as Jim Yeager Outfitters ("Yeager" or "Defendant"), in relation to a fatal boating accident that occurred on the Stillwater River near Columbus, Montana. Plaintiffs assert claims for negligence, negligent infliction of emotional distress, and loss of consortium. (Doc. 1.)
Presently before the Court are Plaintiffs' Motion to Amend the Complaint (Doc. 23), Plaintiffs' Motion for Partial Summary Judgment Regarding the Constitutionality of the Montana Recreation Responsibility Act [*2] (Doc. 28), and Defendant's Motion for Summary Judgment (Doc. 31). The motions are fully briefed and ripe for the Court's review.
Having considered the parties' submissions, the Court finds Plaintiffs' Motion to Amend should be DENIED, Plaintiff's Motion for Partial Summary Judgment should be DENIED, and Defendants' Motion for Summary Judgment should be GRANTED in part and DENIED in part.
I. FACTUAL BACKGROUND1
1 The background facts set forth here are relevant to the Court's determination of the pending motions for summary judgment and are taken from the parties' submissions and are undisputed except where indicated.
Yeager is a professional fishing guide and outfitter. On July 17, 2014, Yeager took a paying client, Charles P. McJunkin ("McJunkin"), on a guided fishing trip in a raft on the Stillwater River. As Yeager was guiding and operating the raft, McJunkin fell into the river and drowned. McJunkin was 81 years old at the time of his death.
McJunkin had gone on similar guided fishing trips with Yeager for approximately 20 years. In fact, in the week preceding the July 17, 2014 accident, McJunkin had floated and fished the Stillwater River three times with Yeager. On each occasion, Yeager put-in at the Johnson Bridge Fishing Access, and used the Swinging Bridge Fishing Access Site for a take-out at the end of the day. The Swinging Bridge take-out is approximately one-quarter mile above a set [*3] of rapids known as the Beartooth Drop. Yeager had never floated through the Beartooth Drop with McJunkin.
McJunkin swam toward the raft, and Yeager attempted to position the raft so that McJunkin could grab ahold of the side. During this process, the party floated past the Swinging Bridge take-out. To complicate matters further, as Yeager attempted to pull McJunkin into the raft, Garner fell into the water. The parties dispute what caused Garner's fall. Plaintiffs [*4] contend Yeager accidentally hit her with an oar. Yeager indicated he didn't know what caused her to fall in, testifying "I don't know if I hit a rock or a wave or whatever, Julie went in." Garner yelled to Yeager that she could not swim. Yeager made the split-second decision to let go of McJunkin and attempt to save Garner, fearing she would drown otherwise. Yeager was able to pull her back into the raft as they entered the Beartooth Drop. Meanwhile, McJunkin lost contact with Yeager and the raft and floated through the rapid. He ultimately did not survive.
II. LEGAL STANDARD FOR SUMMARY JUDGMENT
[HN1] Summary judgment is appropriate where the moving party demonstrates the absence of a genuine issue of material fact and entitlement to judgment as a matter of law. See Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). Material facts are those which may affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). A dispute as to a material fact is genuine if there is sufficient evidence for a reasonable fact-finder to return a verdict for the nonmoving party. Id. "Disputes over irrelevant or unnecessary facts will not preclude a grant of summary judgment." T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987).
[HN2] The party seeking summary judgment always bears the initial burden of establishing the absence of a genuine [*5] issue of material fact. Celotex, 477 U.S. at 323. The moving party can satisfy this burden in two ways: (1) by presenting evidence that negates an essential element of the nonmoving party's case; or (2) by demonstrating that the nonmoving party failed to make a showing sufficient to establish an element essential to that party's case on which that party will bear the burden of proof at trial. Id. at 322-23. If the moving party fails to discharge this initial burden, summary judgment must be denied and the court need not consider the nonmoving party's evidence. Adickes v. S. H. Kress & Co., 398 U.S. 144, 159-60, 90 S. Ct. 1598, 26 L. Ed. 2d 142 (1970).
[HN3] If the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually does exist. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986). In attempting to establish the existence of this factual dispute, the opposing party must "go beyond the pleadings and by 'the depositions, answers to interrogatories, and admissions on file,' designate 'specific facts showing that there is a genuine issue for trial.'" Celotex, 477 U.S. at 324 (quoting Fed. R. Civ. P. 56(e)). The opposing party cannot defeat summary judgment merely by demonstrating "that there is some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586; Triton Energy Corp. v. Square D Co., 68 F.3d 1216, 1221 (9th Cir. 1995) ("The mere existence of a scintilla of evidence in support of the [*6] nonmoving party's position is not sufficient.") (citing Anderson, 477 U.S. at 252).
A. Cross-Motions for Summary Judgment Related to the Montana Recreation Responsibility Act
Plaintiffs assert Yeager's negligence caused McJunkin's death. Yeager contends Plaintiffs' negligence claim fails as a matter of law because it is barred by Montana's Recreation Responsibility Act (the "MRRA"), Mont. Code Ann. § 27-1-751, et seq. Thus, Yeager argues summary judgment on the negligence claim is warranted.
Plaintiffs counter that the MRRA is unconstitutionally vague, and violates the constitutional guarantee of equal protection and right to full legal redress. Plaintiffs, therefore, move for partial summary judgment declaring the MRRA unconstitutional. Plaintiffs further assert that even if the MRRA is constitutional, there are genuine issues of material fact which preclude summary judgment.
1. Yeager's Motion for Summary Judgment under the MRRA
[HN4] The MRRA limits the liability of recreational opportunity providers for injuries resulting from the inherent risks of sports or recreational opportunities.2 Specifically, the MRRA provides in relevant part:
(1) A person who participates in any sport or recreational opportunity assumes the inherent risks in [*7] that sport or recreational opportunity, whether those risks are known or unknown, and is legally responsible for all injury or death to the person and for all damage to the person's property that result from the inherent risks in that sport or recreational opportunity.
(2) A provider is not required to eliminate, alter, or control the inherent risks within the particular sport or recreational opportunity that is provided.
(3)(a) Sections 27-1-751 through 27-1-754 do not preclude an action based on the negligence of the provider if the injury, death, or damage is not the result of an inherent risk of the sport or recreational opportunity.
Mont. Code. Ann. § 27-1-753.
2 "Sport or recreational opportunity" is defined broadly in the MRRA as "any sporting activity, whether undertaken with or without permission, include but not limited to baseball, softball, football, soccer, basketball, bicycling, hiking, swimming, boating, hockey, dude ranching, nordic or alpine skiing, snowboarding, snow sliding, mountain climbing, river floating, whitewater rafting, canoeing, kayaking, target shooting, hunting, fishing, backcountry trips, horseback riding and other equine activity, snowmobiling, off-highway vehicle use, agritourism, an on-farm educational opportunity, and any similar recreational activity." Mont. Code. Ann. § 27-1-752(4).
The MRRA defines "Inherent risks" as:
[T]hose dangers or conditions that are characteristic of, intrinsic to, or an integral part of any sport or recreational activity and that cannot be prevented by the use of reasonable care.
Mont. Code Ann. § 27-1-752(2).
[HN5] When interpreting a statute, a court is required to look to the plain meaning of the words. Clarke v. Massey, 271 Mont. 412, 897 P.2d 1085, 1088 (1995). A court will only resort to the legislative history of a statute if the legislative intent cannot be determined from the statute's plain wording. Id. "[T]he office of judge is simply to ascertain and declare what is in terms or in substance contained therein, not to insert [*8] what has been omitted or to omit what has been inserted." Mont. Code Ann. § 1-2-101.
Yeager maintains that the statute has a simple, straight-forward application to the facts of this case. He argues McJunkin's death was caused by drowning; falling out of a boat and drowning is an inherent risk of fishing from a raft; therefore, Plaintiffs' negligence claim is barred under the MRRA as a matter of law. In short, Yeager asserts because the injury in this case involved drowning while fishing from a raft, the MRRA precludes Plaintiffs' claim. (Doc. 32 at 15.)
Yeager reads the MRRA much too broadly. Construing the statute in this fashion would immunize providers of recreational activities from their own negligence. The Court finds that such a construction would be contrary to the statute's plain words, the legislative intent in enacting the legislation, and would likely render the MRRA unconstitutional.
[HN6] Under the plain language of the MRRA, a risk must satisfy two requirements to constitute an "inherent risk" and thus fall within the Act's protection. There must be (1) a danger or condition that is characteristic of, or intrinsic to the activity, and (2) the danger or condition must be one that cannot be prevented [*9] by the use of reasonable care. Mont. Code Ann. § 27-1-752(2). Therefore, the MRRA does not insulate a provider from all risks which are characteristic of, or intrinsic to the activity. It only provides protection for those risks which cannot be prevented with the use of reasonable care. In order to make this determination, it is necessary to look at the facts and circumstances of each case and the specific risk or condition involved.
Wyoming has a similar "Recreation Safety Act." Wyo. Stat. Ann. §§ 1-1-121 through 1-1-123. Like the MRRA, the Wyoming Act provides that "[a]ny person who takes part in any sport or recreational opportunity assumes the inherent risk in that sport or recreational opportunity, whether those risks are known or unknown . . . ." Wyo. Stat. Ann. § 1-1-123(a). It also similarly states that a provider of the "recreational opportunity is not required to eliminate, alter, or control the inherent risks" of the activity. Wyo. Stat. Ann. § 1-1-123(b). One critical difference between the two acts, however, is the definition of an inherent risk. The MRRA and the Wyoming Act both define inherent risk to mean "those dangers or conditions which are characteristic of, intrinsic to, or an integral part" of the activity. Wyo. Stat. Ann. § 1-1-122(a)(i). But the Wyoming Act's definition does not also include the MRRA's requirement [*10] that the risk "cannot be prevented by the use of reasonable care."
Nevertheless, the construction of the Wyoming Act is instructive as far as the similarities go. Courts which have construed and applied the Wyoming statute have rejected the broad, general interpretation advanced by Yeager in this case. To determine what risks are inherent, decisions under the Wyoming Act have consistently required that a court "go beyond a broad characterization and inquire into the specific circumstances of both [the plaintiff's] actions and those of the recreation provider." Creel v. L & L, Inc., 2012 WY 124, 287 P.3d 729, 736 (Wyo. 2012).
In Cooperman v. David, 214 F.3d 1162 (10th Cir. 2000), for example, the plaintiff was injured during a guided horseback trail ride. The injury occurred when the plaintiff's saddle slipped around to the belly of the horse, causing the plaintiff to fall to the ground. The defendant moved for summary judgment under the Wyoming Recreation Safety Act, arguing that a slipping saddle is an inherent risk of horseback riding. In determining the application of the Act, the Tenth Circuit made clear that the risk in question must be not be evaluated broadly or generally, but in the context of the specific factual setting presented.
Horseback riding undoubtedly carries some inherent risk [*11] that the rider will fall off the horse and get injured. A horse could stumble on an uneven path, or rear, or simply begin to gallop for no apparent reason. All of these risks clearly would qualify as inherent risks of horseback riding. Simply because some risks are inherent in horseback riding, however, does not mean that all risks of falling from a horse are necessarily inherent; instead, it is necessary to look factually at the specific risk to which the rider was exposed. When attempting to determine whether a risk is inherent to a sport, we can not look at the risk in a vacuum, apart from the factual setting to which the rider was exposed. And, we must evaluate the risk at the greatest level of specificity permitted by the factual record. See Madsen, 31 F.Supp.2d at 1328 ("The Court believes that one must look to the specific facts of a case to see whether there is a duty, and not simply look to the abstract character of the risk.").
Cooperman, 214 F.3d at 1167.
The same evaluation must be conducted under the MRRA. It is not enough to find that falling out of a boat and drowning is a general risk of fishing from a raft; therefore, drowning is an inherent risk in fishing. Although there may be circumstances where the risk of drowning [*12] cannot be prevented with the use of reasonable care, it is undoubtedly true the risk may be prevented in many other circumstances.
Therefore, each case must be examined in light of the specific factual context of the case to determine whether the specific risk involved could have been prevented using reasonable care. As the Wyoming Supreme Court points out, "[s]ome risks may occur from the choices a recreation provider makes on behalf of the participant and from the conditions in which the recreational opportunity is provided. Thus, atypical or uncharacteristic risks can arise even in those specific sports the Wyoming legislature clearly intended to exempt from liability for inherent risks." Dunbar v. Jackson Hole Mtn. Resort Corp., 392 F.3d 1145, 1148–49 (10th Cir.2004).
In addition, Yeager's broad interpretation of the MRRA would effectively immunize providers of a recreational opportunity from their own negligence. If providers were protected from all fishing-related drownings under the MRRA, they would be relieved of liability where the death was caused by negligence, or even by willful or wanton misconduct. For example, it would apply not only to situations where a participant falls out of a raft and drowns without negligent conduct by the provider; it would [*13] also apply where the provider negligently causes a raft to collide with a bridge abutment or other known obstruction in the river.
Such an application would be contrary to the legislative intent of the MRRA, which expressly provides that the Act does not "preclude an action based on the negligence of the provider. . . ." Mont. Code Ann. § 27-1-753. As recognized under the Wyoming Act, the "intent behind the Recreation Safety Act was not to preclude parties from suing for a provider's negligence, it was merely to stop people from suing providers for those risks that were inherent to a sport." Madsen v. Wyoming River Trips, 31 F.Supp.2d 1321, 1328 (D. Wyo. 1999).
Finally, construing the MRRA as Yeager urges would likely render the Act unconstitutional. [HN7] Statutes should be construed "to avoid an unconstitutional interpretation if possible." Hernandez v. Bd. of Cty. Comm'rs, 2008 MT 251, 345 Mont. 1, 189 P.3d 638, 642 (Mont. 2008). The Montana Supreme Court found a prior version of Montana's Skier Responsibility Act unconstitutional because it prohibited a skier "from obtaining legal recourse against an operator even if the injury is proximately caused by the negligent or even intentional actions of the operator."3
Brewer v. Ski-Lift, Inc., 234 Mont. 109, 762 P.2d 226, 230 (Mont. 1988). The Court found that although the state had a legitimate interest in protecting the economic vitality of the ski industry, there was no rational relationship [*14] between that purpose and requiring that skiers assume all risks for injuries regardless of the presence of negligence by the ski area operator. Id. at 230. See also, Oberson v. U.S. Dept. of Ag., Forest Serv., 2007 MT 293, 339 Mont. 519, 171 P.3d 715 (Mont. 2007) (snowmobile liability statute's gross negligence standard, which relieved snowmobile operators from their negligent conduct, violated equal protection).
3 The statute at issue in Brewer barred recovery from a ski area operator if the skier suffered an injury resulting "from participating in the sport of skiing." Brewer, 762 P.2d at 229 (citing Mont. Code Ann. § 23-2-736(1)).
The purpose of the MRRA is substantially the same as the skier and snowmobile liability statutes — protection of providers of recreational activities from liability for risks over which the provider has no control. Under Yeager's interpretation of the MRRA, providers of float fly fishing would be immune from liability for drownings, even when caused by the provider's own negligence. Under Brewer and Oberson, such a construction would violate Plaintiffs' rights to equal protection, due process, and access to the courts.
Therefore, whether the MRRA protects a provider of recreational opportunities from certain risks cannot be determined by looking at the broad, abstract character of the risk. Instead, the specific facts and circumstances in each case must be examined to determine whether the risk involved can be prevented by the use of reasonable care. If so, the MRRA does not [*15] shield the provider from liability.
That being established, the determination of whether McJunkin's drowning resulted from an inherent risk of floating and fly fishing is not appropriate for summary judgment. While there may be cases where there are no genuine issue of material fact, and the issue may be appropriately decided as a matter of law, [HN8] the determination of whether a risk is an inherent risk is generally a factual determination for the jury to decide. See e.g. Mead v. M.S.B., Inc., 264 Mont. 465, 872 P.2d 782, 788-89 (Mont. 1994) (holding whether an inherent risk had been established under the Skier Responsibility Act was a question of fact to be resolved by the trier of fact); Cooperman, 214 F.3d at 1169 (noting the question of what is an inherent risk is normally a question of fact for the jury); Halpern v. Wheeldon, 890 P.2d 562, 566 (Wyo. 1995) ("when genuine issues of material fact exist, it is proper to present the issue to the jury of whether a risk is inherent to a particular activity.").4
4 At the time the Halpern case was decided, the Wyoming Act's definition of inherent risk was similar to the MRRA. It was defined as "any risk that is characteristic of or intrinsic to any sport or recreational opportunity and which cannot reasonably be eliminated, altered or controlled." Halpern, 890 P.2d at 564. The highlighted portion of the definition was subsequently removed by the Wyoming legislature.
Here, there are genuine issues of material fact regarding whether the risk encountered by McJunkin was an inherent risk to the sport of float fishing, or whether Yeager could have prevented the risk using reasonable care. Yeager's expert opined that drowning [*16] is an inherent risk of floating in a raft on a river, and McJunkin's death was a result of that inherent risk. But Plaintiffs' expert states the risk of drowning can be prevented by the use of reasonable care. Plaintiffs' expert also opined that Yeager increased the risks to McJunkin, and failed to adhere to industry standards by not taking basic safety precautions and not having a plan or equipment to retrieve McJunkin from the water.
Accordingly, the Court finds there are genuine issues of material fact regarding whether the risks encountered by McJunkin could have been prevented by the use of reasonable care.
As such, Yeager's Motion for Summary Judgment is DENIED as to Count I of the Complaint.
2. Plaintiffs' Motion for Summary Judgment
McJunkin challenges the constitutionality of the MRRA on due process and equal protection grounds. [HN9] Statutes are presumed to be constitutional, and "the party challenging the constitutionality of a statute bears the burden of proving the statute unconstitutional beyond a reasonable doubt." Globe v. Montana State Fund, 2014 MT 99, 374 Mont. 453, 325 P.3d 1211, 1216 (Mont. 2014). "'The question of constitutionality is not whether it is possible to condemn, but whether it is possible to uphold the legislative action . . . .'" Davis v. Union Pac. R. Co., 282 Mont. 233, 937 P.2d 27, 31 (1997) (quoting Fallon County v. State 231 Mont. 443, 753 P.2d 338, 340 (Mont. 1988). "[E]very [*17] possible presumption must be indulged in favor of the constitutionality of the Act." Id. Thus, courts "will construe a statute to further, rather than to frustrate, the Legislature's intent according to the plain meaning of the statute's language." In re Custody and Parental Rights of D.S., 2005 MT 275, 329 Mont. 180, 122 P.3d 1239, 1243 (Mont. 2005). See also Hernandez, 189 P.3d at 642 (stating it is the court's duty "to avoid an unconstitutional interpretation if possible").
a. The MRRA is not Unconstitutionally Vague
Plaintiffs argue the MRRA is unconstitutionally vague on its face, and as applied. Plaintiffs contend the MRRA purports to limit liability for injuries that result from inherent risks, but it does not define "inherent risk" in any clear manner. Thus, Plaintiffs argue there is no fair way to apply the statute because it is unclear what constitutes an "inherent risk."
[HN10] The void-for-vagueness doctrine chiefly applies to criminal statutes, but can apply to civil laws as well. Civil statutes, however, generally receive less exacting vagueness scrutiny. Vill. of Hoffman Estates v. Flipside, Hoffman Estates, 455 U.S. 489, 498-99, 102 S. Ct. 1186, 71 L. Ed. 2d 362 (1982). The United States Supreme Court has held "[t]o find a civil statute void for vagueness, the statute must be so vague and indefinite as really to be no rule or standard at all." Boutilier v. INS, 387 U.S. 118, 123, 87 S. Ct. 1563, 18 L. Ed. 2d 661 (1967). The Montana Supreme Court has similarly declared that a statute is unconstitutionally [*18] vague on its face only if it is shown "that the statute is vague 'in the sense that no standard of conduct is specified at all.'" In re Custody, 2005 MT 275, 329 Mont. 180, 122 P.3d 1239, 1243 (Mont. 2005). "[P]erfect clarity and precise guidance are not required." Id. A statute is not vague "simply because it can be dissected or subject to different interpretations." Montana Media, Inc. v. Flathead Cty., 2003 MT 23, 314 Mont. 121, 63 P.3d 1129, 1140 (Mont. 2003).
Here, the Court finds the MRRA is not unconstitutionally vague on its face. Section 27-1-752(2) plainly provides a standard for assessing what constitutes an "inherent risk." The standard is established with common, readily-understood terms, and it incorporates the familiar negligence standard of reasonable care. Mont. Code Ann. § 27-1-752(2).
Further, contrary to Plaintiffs' argument, the fact the MRRA does not specifically enumerate the risks inherent in each of the 30 recreational activities listed in the statute does not make the Act unconstitutional. [HN11] The Montana Supreme Court has recognized that even if a term in a statute is not exhaustively defined, and allows the court some discretion in determining whether the evidence presented satisfies the statute, the statute will not be rendered unconstitutionally vague. See In re Custody, 122 P.3d at 1243 (holding that although § 41-3-423(2)(a) did not contain an exhaustive list of conduct that constitutes the term "aggravated circumstances," [*19] the statute was not void for vagueness). Moreover, even the more specific recreational liability statutes that Plaintiffs uses for comparison, provide non-exclusive lists of inherent risks. See e.g. Mont. Code Ann. § 23-2-702(2) ("'Inherent dangers and risks of skiing' means those dangers or conditions that are part of the sport of skiing, including: . . ."); § 23-2-822(2) ("Risks inherent in the sport of off-highway vehicle operation include . . ."); § 27-1-726(7) ("'Risks inherent in equine activities' means dangers or conditions that are an integral part of equine activities, including but not limited to: . . .").
The Court further finds the MRRA is not unconstitutionally vague as applied. A person of common intelligence can understand the risks associated with river sports or activities. There is no indication McJunkin would not have been able to appreciate such risks, including the potential risk involved in floating and fishing. Indeed, in their depositions Plaintiffs were able to articulate risks associated with floating on a river, such as falling out of the boat and drowning. Therefore, McJunkin could have understood that the MRRA may limit Yeager's liability for accidents on the river.
Accordingly, the Court finds the MRRA is not [*20] void for vagueness.
b. The MRRA Does Not Violate the Constitutional Guarantee of Equal Protection
Plaintiffs also argue the MRRA violates the constitutional guarantee of equal protection in two ways. First, Plaintiffs assert the Act eliminates any theory of negligence on the part of recreational providers, essentially excusing them from the consequences of their own negligence. Second, Plaintiffs argue the MRRA arbitrarily treats certain groups of recreationalists differently. Plaintiffs assert that participants in activities covered by the MRRA are treated differently from those participating in activities covered under other activity-specific recreation statutes because the MRRA is vague, whereas the other statutes are not. Plaintiffs further assert the MRRA treats recreationists covered by the Act differently because the MRRA attempts to resurrect the "secondary" assumption of risk defense, and inserts a "primary" assumption of risk defense.
i. The MRRA Does not Eliminate All Theories of Negligence
As discussed above, although a provider is not liable for, or required to eliminate, alter, or control inherent risks under the MRRA, the provider still owes a duty of care for risks that [*21] can be prevented by the use of reasonable care. Thus, the Court finds the MRRA continues to permit negligence claims against a provider if the risk could have been prevented by the use of reasonable care. Thus, the MRRA does not violate Plaintiffs' equal protection rights by immunizing providers from their own negligence.
ii. The MRRA Does Not Arbitrarily Treat Groups of Recreationists Differently
The MRRA is drawn broadly and defines "sport or recreational opportunity" by reference to a non-exhaustive list of 30 activities. Mont. Code. Ann. § 27-1-752(4). Some of the listed activities are also covered by their own activity-specific recreation liability statutes, such as skiing, snowmobiling and off-road vehicle use. Id.; §§ 23-2-651, et seq.; 23-2-702, et seq.; 23-2-822. Therefore, the MRRA goes on to exclude those activities from its scope. Mont. Code Ann § 27-1-754 (stating the MRRA does "not apply to duties, responsibilities, liability, or immunity related to" activities that are already subject to an activity-specific recreational statute).
Plaintiffs assert that this statutory scheme causes different groups of recreationists to be treated differently. Specifically, Plaintiffs assert the recreationists who fall under the MRRA are disadvantaged in several [*22] respects.
First, Plaintiffs argue the MRRA's alleged vagueness only affects the subset of recreationists who participate in activities covered by the Act. Whereas, recreationists engaging in other sports, such as skiing or snowmobiling, have specific notice of their rights and the provider's responsibilities. The Court has determined, however, that the MRRA is not unconstitutionally vague. Further, as noted above, even the activity-specific recreation statutes that specifically identify certain inherent risks do so in a non-exhaustive fashion. Thus, there is no significant difference in treatment between the recreationists who fall under the MRRA, and those who fall under other recreational statutes with respect to notice.
Next, Plaintiffs assert the MRRA departs from other recreational statutes by attempting to revive the "secondary" assumption of risk defense and by suggesting a "primary" assumption of risk defense. Historically, Montana has not used the terms "primary" and "secondary" assumption of risk. Nevertheless, legal commentators have explained [HN12] "primary" assumption of risk refers to the concept of duty, and "secondary" assumption of risk refers to contributory negligence.
[*23] See Dan B. Dobbs, et al., Dobbs' Law of Torts § 238 (2d ed. 2018) ("[T]he term 'primary assumption of risk' is used to indicate the no-duty or no-breach conception and its attendant complete-bar effect; and the term 'secondary assumption of risk' is used to indicate the contributory negligence conception."); 65A C.J.S. Negligence § 398 (2018) ("Primary assumption of risk limits the duty which a person owes to another. Secondary assumption of risk, on the other hand, which is a type of contributory negligence and is an affirmative defense, may be raised by the defendant after the plaintiff has met the burden of showing that the defendant breached a legal duty owed to the plaintiff."); W. Page Keeton, et al., Prosser and Keeton on the Law of Torts § 68, 480-81 (5th Ed. 1984) (stating "primary" assumption of risk "is really a principle of no duty," and explaining that under the duty perspective, "the plaintiff voluntarily enters into some relation with the defendant, with knowledge that the defendant will not protect him against one or more future risks that may arise from the relation . . . the legal result is that the defendant is simply relieved of the duty which would otherwise exist.").
With regard to [*24] "secondary" assumption of risk, Plaintiffs assert the MRRA, "unlike any other recreation act in Montana," resurrects the "secondary" assumption of risk defense, without articulating any specific inherent risks the participant would be assuming. (Doc. 29 at 15.) As Yeager points out, however, the MRRA is in fact similar to the other recreation statutes in that they also provide that the participant assumes the risks inherent in the particular activity. See e.g. Mont. Code Ann. § 23-2-736(4) ("A skier shall accept all legal responsibility for injury or damage of any kind to the extent that the injury or damage results from inherent dangers and risks of skiing."); § 23-2-822 (1) ("An off-highway vehicle operator shall accept all legal responsibility for injury or damage of any kind to the extent that the injury or damage results from risks inherent in the sport of off-highway vehicle use. . . ."); 23-2-654(3) ("A snowmobiler shall accept all legal responsibility for injury or damage of any kind to the extent that the injury or damage results from risks inherent in the sport of snowmobiling."). Further, as discussed in regard to Plaintiff's vagueness challenge, the MRRA does not fail to put participants on notice of the inherent [*25] risks they are assuming. As such, recreationists participating in activities that fall under the MRRA are not on significantly different legal footing than participants in other recreational activities. Finally, Plaintiffs contend the MRRA's suggestion of a "primary" assumption of risk defense amounts to an end-run around comparative negligence. As used here, the assumption of risk terminology in the MRRA refers to a principle of no duty. In Halpern v. Wheeldon, 890 P.2d 562, 565 (Wyo. 1995), the Wyoming Supreme Court found the assumption of risk language in the Wyoming Recreation Safety Act, "was intended to limit the duty to which a provider owes to a participant." The Court explained that because primary assumption of risk was only intended to limit the provider's duty, it did not affect the comparative negligence scheme. Id. Likewise, here, the Court finds the assumption of risk language in the MRRA affects only the provider's duty. It does not revive contributory negligence or undermine Montana's comparative negligence law. Moreover, as noted, the other activity-specific recreation statutes contain similar assumption of risk language. Thus, recreationists are treated the same under both the MRRA and other activity-specific recreation [*26] statutes, and there is no violation of equal protection.
c. The MRRA Does Not Unconstitutionally Interfere With the Right to Trial by Jury
Finally, Plaintiffs argue the MRRA infringes upon the province of the jury by injecting questions of ultimate fact into preliminary legal questions. As discussed above, however, whether McJunkin's death was the result of an inherent risk of float fly fishing, and whether it could have been prevented by the use of reasonable care, are jury questions. Thus, the Court finds the MRRA does not unconstitutionally interfere with Plaintiffs' fundamental right to trial by jury.
B. Yeager's Motion for Summary Judgment on Plaintiffs' Negligent Infliction of Emotional Distress Claim
Yeager contends Plaintiffs' claim for negligent infliction of emotional distress ("NEID") fails as a matter of law because there is insufficient evidence for a jury to find Plaintiffs suffered serious or severe emotional distress.5 The Court agrees.
5 Yeager also asserts Plaintiffs' NIED claim fails because there is no actionable predicate act of negligence since the MRRA bars Plaintiffs' negligence claim. As discussed, however, the Court has found there are disputed issues of material fact regarding Plaintiff's negligence claim. Accordingly, Yeager's argument fails in this regard.
[HN13] Under Montana law, an independent cause of action for NIED arises "under circumstances where serious or severe emotional distress to the plaintiff was the reasonably foreseeable consequence of the defendant's negligent act or omission." Sacco v. High Country Ind. Press, Inc., 271 Mont. 209, 896 P.2d 411, 426 (Mont. 1995). [*27] "To constitute 'serious' or 'severe,' the emotional distress must be 'so severe no reasonable person could be expected to endure it.'" Feller v. First Interstate Bancsystem, Inc., 2013 MT 90, 369 Mont. 444, 299 P.3d 338, 344 (Mont. 2013). The question of whether the threshold level of emotional distress can be found is for the Court to determine. Sacco, 896 P.2d at 425 ("It is for the court to determine whether on the evidence severe [serious] emotional distress can be found; it is for the jury to determine whether, on the evidence, it has in fact existed.") (quoting Restatement (Second) of Torts, § 46, comment j at 78).
In Feller, the Montana Supreme Court considered [HN14] several factors in determining whether there is sufficient evidence of severe emotional distress, including: (1) whether the plaintiff had any physical manifestations of grief; (2) whether counseling was sought or recommended; (3) whether the plaintiff took medication or the use of medication dramatically increased; (4) whether the plaintiff had continuous nights of sleeplessness or days without appetite; (5) whether the plaintiff maintained close relationships with family members and friends; (6) the duration of the emotional distress; and (7) the circumstances under which the infliction incurred, including whether the plaintiff witnessed the distressing event. Feller, 299 P.3d at 345.
Here, the Court finds [*28] Plaintiffs have not presented evidence of the type of emotional distress necessary to demonstrate serious or severe compensable emotional distress. Rhett McJunkin and Charles McJunkin, Jr. testified at deposition that they have both experienced grief, trouble sleeping and have had nightmares. Rhett McJunkin also testified he took sleep medication approximately one year after the accident, but could not recall what the medication was, who prescribed the medication, or how long own long it was taken. Rhett McJunkin also stated he has also experienced "angst" and "anxiety," and Charles McJunkin, Jr. indicated his focus has been affected.
Nevertheless, there is no indication of any physical manifestation of grief, and neither has sought counseling, taken or increased medication to manage their emotional distress, have suffered a loss of appetite, are unable to maintain close family relationships, and neither witnessed the accident. The Court finds that consideration of the Feller factors does not lead to the conclusion that Plaintiffs' emotional distress rises to the level where severe emotional distress may be found.
The Court certainly sympathizes with Plaintiffs' grief for their loss [*29] of their father. Nevertheless, their testimony does not show their emotional distress was so severe that "no reasonable person could be expected to endure it." Feller, 299 P.3d at 344.
Accordingly, Yeager's Motion for Summary Judgment is GRANTED on Count II of the Complaint.
C. Yeager's Motion for Summary Judgment on Plaintiffs' Loss of Consortium Claim
Yeager argues Plaintiffs' loss of consortium claim also fails as a matter of law because there is insufficient evidence to support the claim.6 The Court finds there are disputed issues of material fact that preclude summary judgment.
6 Yeager again asserts Plaintiffs' loss of consortium claim fails because there is no actionable predicate act of negligence. As discussed, this argument is again rejected because there are disputed issues of material fact regarding Plaintiffs' negligence claim.
[HN15] Montana law recognizes loss of consortium claims by an adult child of an injured parent. N. Pac. Ins. Co. v. Stucky, 2014 MT 299, 377 Mont. 25, 338 P.3d 56, 61 (Mont. 2014). In Stucky, the Montana Supreme Court held an adult child must meet the following two-part test7 to establish a claim for loss of parental consortium: "1) a third party tortuously caused the parent to suffer a serious, permanent and disabling mental or physical injury compensable under Montana law; and 2) the parent's ultimate condition of mental or physical impairment was so overwhelming and severe that it has caused the parent-child relationship to be destroyed or nearly destroyed." Id. at 66.
7 The Court adopted the two-part test from Keele v. St. Vincent Hosp. & Health Care Ctr., 258 Mont. 158, 852 P.2d 574 (Mont. 1993), which recognized parental loss of consortium claims by minor children. The Montana Supreme Court stated it found no reason to adopt a different standard for an adult child's claim of loss of parental consortium. Stucky, 338 P.3d at 65. The Court specifically rejected adopting the more stringent "extraordinarily close and interdependent relationship" test from Hern v. Safeco Ins. Co. of Ill., 2005 MT 301, 329 Mont. 347, 125 P.3d 597 (Mont. 2005), which applies to loss of consortium claims brought by the parent of an adult child.
[HN16] In establishing a loss of parental consortium claim, the plaintiff [*30] may present evidence of the following factors, which the jury may consider in determining both whether the two-part test has been satisfied, and what damages are appropriate: "the severity of injury to the parent; the actual effect the parent's injury has had on the relationship and is likely to have in the future; the child's age; the nature of the child's relationship with the parent; and the child's emotional, physical and geographic characteristics." Id.
Stucky involved an injury to a parent, rather than the death of a parent. Nevertheless, an adult child's loss of a parent would readily meet the requirements established in Stucky for the maintenance of a consortium claim. The fact McJunkin died is sufficient to establish the first prong of the test, which requires serious permanent injury. Second, death is obviously an injury so "overwhelming and severe" as to destroy the parent-child relationship. Thus, the second prong of the test is clearly established.
Yeager points out that Plaintiffs are in their late 50's/early 60's, they lived hundreds of miles away from their father, received no financial support from him, and saw him only occasionally. Plaintiffs counter that they had [*31] a tight bond with their father, and that Charles McJunkin, Jr. talked to his father on a regular basis. This is evidence for the jury to assess. Stucky, 338 P.3d at 65.
Accordingly, the Court finds there are disputed issues of material fact that preclude summary judgment on Plaintiffs' loss of consortium claim. Yeager's Motion for Summary Judgment as to Count III of the Complaint is therefore, DENIED.
III. MOTION TO AMEND COMPLAINT
Plaintiffs have also filed a Motion to Amend the Complaint. (Doc. 23.) Plaintiffs seek to add a new theory of liability to the existing negligence claim. In particular, Plaintiffs seek to add the theory of strict liability based upon an abnormally dangerous activity. Yeager opposes the motion, arguing Plaintiffs were not diligent in moving to amend, and the proposed amendment is futile.
On June 1, 2017, the Court issued a Scheduling order setting the deadline to amend pleadings for July 3, 2017. (Doc. 20.) Plaintiffs filed the instant motion seeking leave to amend on November 29, 2017. (Doc. 23.)
[HN17] In situations where the deadline for amendments to pleadings has passed, a party must show good cause for not seeking leave to amend within the Court's scheduling order. Fed.R.Civ.P. 16(b)(4) ("[a] schedule may [*32] only be modified for good cause and with the judge's consent"); Coleman v. Quaker Oats Co., 232 F.3d 1271, 1294 (9th Cir. 2000).
In Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992), the Ninth Circuit explained that "[u]nlike Rule 15(a)'s liberal [HN18] amendment policy which focuses on the bad faith of the party seeking to interpose an amendment and the prejudice to the opposing party, Rule 16(b)'s 'good cause' standard primarily considers the diligence of the party seeking the amendment." Good cause to excuse noncompliance with the scheduling order exists if the pretrial schedule "cannot reasonably be met despite the diligence of the party seeking the extension." Id. (quoting Fed. R. Civ. P. 16 Advisory Committee's Notes (1983 Amendment)).
Prejudice to the opposing party may provide an additional reason to deny a motion to amend, but "the focus of the inquiry is upon the moving party's reasons for seeking modification." Id. at 609. "If that party was not diligent, the inquiry should end." Id.; see also In re Western States Wholesale Natural Gas Antitrust Litigation, 715 F.3d 716, 737 (9th Cir. 2013) (upholding denial of motion to amend where "the party seeking to modify the scheduling order has been aware of the facts and theories supporting amendment since the inception of the action").
[HN19] If good cause exists for seeking amendment after the scheduling order's deadline, the Court then turns to Rule 15(a) to determine whether amendment should be allowed. [*33] "Although Federal Rule of Civil Procedure 15(a) provides that leave to amend 'shall be freely given when justice so requires,' it 'is not to be granted automatically.'" In re Western States, 715 F.3d at 738 (quoting Jackson v. Bank of Hawaii, 902 F.2d 1385, 1387 (9th Cir.1990)). Under Rule 15(a), the Ninth Circuit directs that courts consider the following five factors to assess whether to grant leave to amend: "(1) bad faith, (2) undue delay, (3) prejudice to the opposing party, (4) futility of amendment; and (5) whether plaintiff has previously amended his complaint." Id. Each of these factors is not given equal weight, however. "Futility of amendment can, by itself, justify the denial of a motion for leave to amend." Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 1995).
A. Lack of Diligence
As noted above, Plaintiffs seek to amend the Complaint to include an additional theory of strict liability. The Court finds that Plaintiffs did not act diligently in seeking to amend the Complaint. The motion to amend was filed nearly five months after the Court's deadline to amend pleadings. Plaintiffs' explanation for the delay is that the additional theory of liability is premised upon Yeager's expert report, which they did not receive until November 13, 2017.
The Court finds, however, that Plaintiffs were aware of the facts and theories supporting the amendment long prior to receipt of [*34] Yeager's expert report. The expert report did not provide any new facts, but rather offered opinion evidence that fly fishing from a raft is inherently dangerous, and that the danger cannot be eliminated by reasonable precautions. But Plaintiffs have been aware that Yeager intended to raise an inherent risk defense since Yeager filed his answer on March 6, 2017, and raised the MRRA as an affirmative defense. (Doc. 4 at 7.) Yeager also filed a Preliminary Pretrial Statement approximately six months before the expert report was produced that put Plaintiffs on further notice of this theory of defense. (See Doc. 18 at 6) (stating that "[f]alling out of a raft on a river is a danger that cannot be prevented by the use of reasonable care.") Therefore, Plaintiffs' argument that they did not possess information supporting the abnormally dangerous activity theory of liability until after they received the expert report is not persuasive. See Bonin, 59 F.3d at 845 (holding a motion to amend may be denied "where the movant presents no new facts but only new theories and provides no satisfactory explanation for his failure to fully develop his contentions originally").
B. Futility of Amendment
Even if the Court found "good cause," under [*35] Rule 16, application of the Rule 15 factors dictate denial of the motion to amend. Although there is no indication Plaintiffs are acting in bad faith, or that amendment would unduly prejudice Yeager, the Court has found undue delay. Moreover, the Court finds the amendment would be futile.
In seeking to impose strict liability, Plaintiffs conflate the concept of inherent risk with an abnormally dangerous activity. The activity at issue here — fly fishing from a raft — is not the kind of activity that has been recognized as abnormally dangerous. [HN20] Simply because an activity has inherent risks, does not mean the activity is abnormally dangerous for purposes of strict liability. A comparison of activities that are considered abnormally dangerous illustrates the point. See e.g. Beckman v. Butte-Silver Bow Cty., 2000 MT 112, 299 Mont. 389, 1 P.3d 348 (Mont. 2000) (trenching); Sunburst Sch. Dist. No. 2 v. Texaco, Inc., 2007 MT 183, 338 Mont. 259, 165 P.3d 1079 (Mont. 2007) (operating a gas refinery near residences and a school); Ulmen v. Schwieger, 92 Mont. 331, 12 P.2d 856 (Mont. 1932) (highway construction); and Stepanek v. Kober Const., 191 Mont. 430, 625 P.2d 51 (Mont. 1981) (construction scaffolding). The Court does not find the characteristics and risks of fly fishing equate in any meaningful way with these types of activities.8
8 Likewise, the Restatement (Second) of Torts § 519, which has been adopted by the Montana Supreme Court, identifies the following as abnormally dangerous activities: "Water collected in quantity in unsuitable or dangerous place," "Explosives in quantity in a dangerous place," "Inflammable liquids in quantity in the midst of a city," "Blasting, in the midst of a city," "Pile driving, with abnormal risk to surroundings," "Release into air of poisonous gas or dust," "Drilling oil wells or operating refineries in thickly settled communities," and "production of atomic energy." Again, these activities are of a wholly different nature than float fly fishing.
"Whether an activity is abnormally dangerous is a question of law." Chambers v. City of Helena, 2002 MT 142, 310 Mont. 241, 49 P.3d 587, 591 (Mont. 2002), overruled on other grounds, Giambra v. Kelsey, 2007 MT 158, 338 Mont. 19, 162 P.3d 134 (Mont. 2007). No court has held float fly fishing is an abnormally dangerous activity, and [*36] this Court declines Plaintiffs' invitation to be the first to do so.
In addition, the Court has determined the MRRA is constitutional and applies to Plaintiff's negligence claim. The MRRA limits a recreational provider's liability. Mont. Code Ann. § 27-1-752(3); 27-1-753. The Montana Legislature enacted the MRRA to protect recreational providers from liability for injuries that are caused by the very characteristics of a particular activity that make it attractive to participants. 2009 Mt. Laws Ch. 331 (H.B. 150), preamble. The Legislature specifically intended to limit providers' liability and to discourage claims based on damages that result from inherent risks in a sport or activity. Id. The Legislature enacted the MRRA to further the State's interest in maintaining the economic viability of Montana's sports and recreational industries. Id.
Imposing strict liability would eviscerate the purpose of the MRRA. Instead of limiting recreational provider's liability for inherent risks, it would render them strictly liable for those risks. See Christian v. Atl. Richfield Co., 2015 MT 255, 380 Mont. 495, 358 P.3d 131, 150 (Mont. 2015) ("A claim based upon strict liability for the conduct of an abnormally dangerous activity . . . means that the defendant is liable for harm resulting from the activity, even [*37] if the defendant acted with reasonable care."). In short, it would accomplish the exact opposite of what the MRRA was intended to do.
Therefore, because Plaintiffs have not shown good cause for their delay in seeking amendment, and because the amendment would be futile, Plaintiffs' Motion to Amend the Complaint is DENIED.
For the foregoing reasons, the Court ORDERS as follows: (1) Plaintiffs' Motion to Amend (Doc. 23) is DENIED;
(2) Plaintiffs' Motion for Partial Summary Judgment (Doc. 28) is DENIED; and
(3) Defendant's Motion for Summary Judgment (Doc. 31) is GRANTED in part and DENIED in part.
IT IS ORDERED.
DATED this 28th day of September, 2018.
/s/ Timothy J. Cavan
TIMOTHY J. CAVAN
United States Magistrate Judge
Whitewater rafting release upheld by the Alaska Supreme Court.
Posted: June 25, 2018 | Author: Recreation Law | Filed under: Alaska, Release (pre-injury contract not to sue), Whitewater Rafting | Tags: acknowledgment, alert, appendix, Canyon, Climbing, drowning, exculpate, Gym, Inherent Risk, Inherent Risks, insinuate, instructors, Notice, Public Policy, purported, Rafting, reasonable steps, recreational, recreational activity, Release, rock, signature, signing, skilled, Summary judgment, training, trip, unrelated, waive, waived, Warning, Whitewater | Leave a comment
Language in the release stated the defendant would and had done their best to keep people adequate… that language almost voided the release. Don't put in a release information that can be used against you!
State: Alaska, Supreme Court of Alaska
Plaintiff: Vanessa L. Langlois, Personal Representative of the Estate of Stephen J. Morton
Defendant: Nova River Runners, Inc.
Plaintiff Claims: Wrongful Death and multiple theories of Negligence
The deceased died whitewater rafting. Alaska has a six-prong test to determine if a release is valid. Here, the plaintiff argued the release in question failed on every point.
The Alaskan Supreme Court disagreed; however, on a few of the issues, the court struggled to have this release meet the requirements needed.
The defendant operated whitewater raft trips on Six Mile Creek near Hope, Alaska. The deceased signed a release prior to going rafting. No one could remember if the deceased read both sides of the release, however, ample time was given so the release could have been read.
The release is a 2-sided document. One side is labeled Participants Acknowledgment of Risk. The other side is where the participants acknowledge they have read the release.
The raft trip consists of three canyons. After the first two canyons, the participants are given an opportunity to get off the trip because the third canyon is the hardest. The deceased did not leave the trip. Sometime in the canyon is raft capsized, and the decedent died.
The spouse of the deceased brought his lawsuit on her behalf and as the executor (personal representative) of the estate. The trial court dismissed the plaintiff's claims after the defendant filed a motion for summary judgment based on the release signed by the deceased. The plaintiff appealed.
The decision was heard by the Alaska Supreme Court. Alaska does not have an intermediate appellate court so appeals from the trial court go to the Supreme Court.
Alaska has a statute, Alaska Statute 09.65.290, that protects recreational defendants from liability from the inherent risks of the activity. The court recognized the statute is weak and stated that business in Alaska must supplement their protection by using a release.
The Alaska Supreme Court decided one prior decision concerning releases Donahue v. Ledgends, Inc., 2014 Alas. LEXIS 153, See Alaskan Supreme Court upholds releases for climbing gym and sets forth requirements on how releases will be upheld in AK. The court relied on its prior decision in Donahue to support its decision here.
In Donahue, the court created a six-part test to test the validity of a release.
…(1) the risk being waived must be specifically and clearly set forth (e.g. death, bodily injury, and property damage); (2) a waiver of negligence must be specifically set forth using the word "negligence"; (3) these factors must be brought home to the releasor in clear, emphasized language . . . ; (4) the release must not violate public policy; (5) if a release seeks to exculpate a defendant from liability for acts of negligence unrelated to inherent risks, the release must suggest an intent to do so; and (6) the release agreement must not represent or insinuate standards of safety or maintenance.
The plaintiff argued the release in this case did not satisfy the requirements set forth in Donahue.
The first argument was the release was not conspicuous and unequivocal because the release was two sided, and the sides did not appear to incorporate or be connected to each other.
The court did not agree with the argument because whether or not it was two different documents and whether or not the deceased read both sides was irrelevant because he signed the document. "We note that Participants in a recreational activity need not read a release for it to be binding if the language of the release is available to them."
The next argument was different.
The Estate also argues that NOVA's Release "does not specifically and clearly set forth the risk that the NOVA instructors may have been negligently trained or supervised, or that they may give inadequate warning or instructions."
The court found that the language in the release was broad enough to cover this claim.
However, the Release covers this risk as well; it indemnifies the "Releasees" in capital letters from liability for injury or death, "whether arising from negligence of the Releasees or otherwise," and specifically defines "Releasees" to include "employees."
The court also found that in Donahue,
…we also observed that "[i]t would not be reasonable to conclude that [the defendant] sought a release only of those claims against it that did not involve the acts or omissions of any of its employees."
The plaintiffs then argued that a release must use the word negligence in it. This is a requirement of many states. Here, however, the argument failed because the release did use the term negligence, several times. The plaintiff's argued that each time the word negligence was used, it was used in a way that was different from the prior ways so the release was not clear and explicit.
Next the plaintiff's argued the language was not clear and did not adequately define the activity. The court found this release used capital letters to highlight the clauses waiving negligence, and the negligence clause was not concealed from view.
The clause contained some legalese; however, releases should be read "as a whole" to determine whether or not the language in the release "clearly notify the prospective releasor of the effect of signing the agreement."
The release was a general release in that it also included release language for glacier hiking and ice climbing. However, the inherent risks outlined in the release were the risks of whitewater rafting. With that risk language, the court found the reader would know they were signing a release.
Based on that language it is obvious the release would fail for ice climbing and glacier hiking?
The plaintiff's argued the release violated public policy. However, the court outlined Alaska's definition of public policy in relation to recreation activities.
In evaluating public policy arguments in the context of liability waivers, we have previously considered "[o]f particular relevance . . . the type of service performed and whether the party seeking exculpation has a decisive advantage in bargaining strength because of the essential nature of the service."25 The type of service likely to inspire additional scrutiny on public policy grounds is "a service of great importance to the public, which is often a matter of practical necessity for some members of the public.
A release for recreational activities does not violate public policy in Alaska.
The plaintiffs also argued the "release suggests an intent to exculpate nova from liability for employee negligence."
The court said, yes it does and that is OK. However, the court also specifically identified weaknesses in the release in this area. However, the weaknesses were not enough to void the release.
Ideally NOVA's Release would include a more detailed description of the types of negligence it covers, such as "employee negligence" and "negligent training." But doing so is not a requirement under Donahue. We therefore conclude that the Release suggests an intent to exculpate NOVA from liability for acts of employee negligence.
The plaintiffs also argued the defendants violated their own requirements set forth in the release. The release stated:
"…the concessionaire has taken reasonable steps to provide you with appropriate equipment and/or skilled guides so you can enjoy an activity for which you may not be skilled."
The court worked around this stating the language before and after this [stupid] section defined the risks of the activity, which should have shown the deceased that no matter what steps taken, there were still risks. The court stated, read as a whole, the release outlined numerous risks of whitewater rafting.
The plaintiff argued a case out of Florida, which also had numerous safety standards the defendant promised to meet and had not, should be controlling here. The court had been struggling through four paragraphs eventually concluded.
NOVA's Release contains only a single half-sentence, to that effect, adequately disclaimed: "Although the concessionaire has taken reasonable steps to provide you with appropriate equipment and/or skilled guides so you can enjoy an activity for which you may not be skilled, this activity is not without risk. Certain risks cannot be eliminated without destroying the unique character of the activity." And the release in Kerr was much broader — promising to "try to make the [premises] safe" — than NOVA's Release, which promises merely that the company takes "reasonable steps to provide . . . appropriate equipment and/or skilled guides" while acknowledging in context that these precautions could not mitigate all the risks posed by a whitewater rafting trip. The Estate's reliance on Kerr is thus misplaced, and we conclude that the Release does not represent or insinuate standards of safety or maintenance.
The court found the release met all the six requirements needed in Alaska to be a release and upheld the trial court's dismissal of the plaintiff's claims.
If your release, and I hope, it does, covers more than one page, make sure the pages connect or relate to each other. First, if on just one piece of paper, at the bottom of each page put in the footer, "Please Read Other Side." If the release is more than two pages, besides the admonition to read the other side include page numbers on the document.
Write the document so it flows. You don't have to have a heading at the top of each page. The two different headings in this case raised the argument it was two separate and unrelated documents. If the document were two different documents, then the first page should have had a signature line also, which is what the plaintiff argued. With no signature line, the first page of the document was a separate document and could not be held against the deceased.
If the writing flows, the paragraph or idea continues on the next page, then this would have been a non-issue.
Next you have to write your release to cover not only could happen but will happen, and it is all tied back to your employees. Always protect your employees and write the release broadly so it covers all the possible actions or acts an employee could take that may lead to a claim.
Never create in your release in a way for the plaintiff to sue you. Never make promises, never say you operate at a level, never say you use the best or even adequate anything. That language in this release almost was enough to defeat the release, and it was obvious the court struggled to find a very weak argument to beat this part of the plaintiff's claims.
TUSA Recalls Diving Computers Due to Drowning and Injury Hazards
Posted: October 25, 2016 | Author: Recreation Law | Filed under: Scuba Diving | Tags: #scuba, Consumer Product Safety Council, CPSC, Diving, Diving Computers, drowning, Recall, scuba diving, TUSA | Leave a comment
Hazard: The dive computer can malfunction and display an incorrect reading to the diver, posing a drowning and injury hazard due to decompression sickness.
Remedy: Replace
Consumers should immediately stop using the recalled diving computers and contact TUSA to receive a free replacement diving computer.
Consumer Contact: TUSA at 800-482-2282 from 8 a.m. to 5 p.m. PT Monday through Friday or online at http://www.tusa.com/us-en and click on "Recall" for more information.
Photos available at: https://www.cpsc.gov/Recalls/2017/TUSA-Recalls-Diving-Computers
Units: About 175
Description: This recall involves TUSA DC Solar Link IQ1204 diving computers. The black or white and blue wrist-watch style diving computers have a digital screen. TUSA is printed on the front of the diving computer. The model number and serial number is printed on the back of the diving computer below "TUSA DC Solar Link." Recalled diving computers have serial numbers 6TA0001 – 6TA2864.
Incidents/Injuries: None reported
Sold at: Sporting goods stores nationwide from March 2016 through June 2016 for about $750.
Importer/Distributor: Tabata USA Inc. (TUSA), of Long Beach, Calif.
Retailers: If you are a retailer of a recalled product you have a duty to notify your customers of a recall. If you can, email your clients or include the recall information in your next marketing communication to your clients. Post any Recall Poster at your stores and contact the manufacturer to determine how you will handle any recalls.
For more information on this see:
Recalls Call for Retailer Action
A recall leads to lawsuits because injuries are connected to the product being recalled thus a lawsuit. Plaintiff's hope the three can be connected
Combination of a Products Liability statute, an Expert Witness Report that was just not direct enough and odd facts holds a retailer liable as manufacture for product defect.
Product Liability takes a different turn. You must pay attention, just not rely on the CPSC.
Retailer has no duty to fit or instruct on fitting bicycle helmet
Summary Judgment granted for bicycle manufacturer and retailer on a breach of warranty and product liability claim.
The legal relationship created between manufactures and US consumers
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Poorly written release on a sign-in sheet barely passes protecting Ohio defendant swimming area from suit.
Posted: August 15, 2016 | Author: Recreation Law | Filed under: Ohio, Release (pre-injury contract not to sue), Swimming | Tags: drowning, Lifeguard, Ohio, Reckless, Release, Sign in Sheet, swimming, Willful & Wanton | Leave a comment
Willful and Wanton actions by a defendant are hard to prove unless the defendant actually did something. Mere failure to do something is rarely a willful and wanton act; it requires an act to prove.
Bishop vs – Nelson Ledges Quarry Park, Limited, et al., 2005-Ohio-2656; 2005 Ohio App. LEXIS 2504
State: Ohio, Court of Appeals of Ohio, Eleventh Appellate District, Portage County
Plaintiff: Robert Bishop, Executor of the Estate of Eric E. Bishop, Deceased, et al.,
Defendant: Nelson Ledges Quarry Park, Limited, et al.,
Plaintiff Claims: The trial court erred in failing to apply the standards for determination of motions for summary judgment. The trial court erred in granting summary judgment in favor of appellee Nelson Ledges Quarry Park, Ltd. based on alleged lack of possession or control of leased premises. The trial court erred in granting summary judgment for appellees on the ground that a valid release executed by Eric Bishop released appellees from liability."
The deceased was an 18-year-old man who went swimming at the plaintiff's swimming area with several other friends. Nelson Ledges is like many swimming "holes" in Ohio, old quarries that have flooded or dammed areas that are privately owned and turned into swimming, camping and boating recreation areas. They are open to the public, like this one, for a fee. Here the fee was $5.00 per person.
Upon arriving at the defendants, the decedent and his friends paid their fee and signed a release. From the description, the release might have been on a sign-in sheet. Besides being on a sign-in sheet with multiple signatures, it was poorly written.
The deceased and his friends skipped the beach where a life guard was located and went to another area that people did swim. The deceased and a few friends swam out to an island; however, the deceased did not make it, drowning 15' from the island shore.
The decedent's estate sued. The defendants filed a motion for summary judgment, which was granted. The trial court held:
That, even when reviewing all of the evidence in the light most favorable to the plaintiff, including the report of Tom Griffiths, defendants' conduct did not rise to a level of reckless, willful or wanton conduct, but at most, suggested there may be a genuine issue of material fact as to negligence. 3) The waiver was valid, as a matter of law, thus, Eric waived all claims of negligence, and Bishop was barred from recovering on the wrongful death claim.
The plaintiff's appealed.
The court first set forth the requirements to prove a wrongful-death claim.
1) a wrongful act, neglect or default of defendant which proximately caused the death and which would have entitled the decedent to maintain an action and recover damages if death had not ensued; 2) that a decedent was survived by a spouse, children, parents, or other next of kin; and 3) that the survivors suffered damages by reasons of the wrongful death.
Than the Court took the arguments out of order, from the plaintiff's appeal, starting with the validity of the release. (Ohio's law is probably the most supportive of all states on release law.)
It is well-settled in Ohio that participants in recreational activities and the proprietor of a venue for such an activity are free to enter into contracts designed to relieve the proprietor from responsibility to the participant for the proprietor's acts of negligence, but not for his willful or wanton misconduct.
Clauses limiting liability shall ordinarily be construed strictly against the drafting party. Moreover, matters involving the interpretation of contract terms, when such terms are unambiguous, are questions of law.
The issue then was whether the acts of the defendants were willful and wanton, which would void the release. The court first looked at the release which it found wanting to an extent. "While inartfully drafted, the sheet Eric signed is clearly labeled at the top as a "Liability Waiver Form" in bold type."
The court followed up a review of the release with this statement.
…although "the better practice would certainly be to expressly state the word 'negligence' somewhere in the exculpatory provision the absence of that term does not automatically render the provision fatally flawed.
The plaintiff also argued the release was no clear because the type was small. However, the court found this argument not to be valid under Ohio's law and not an issue in this case.
Ohio has no such provisions. While we agree in broad principle that contract provisions, particularly those which purport to waive liability, should be printed in type large enough for a person of normal vision to read easily, the waiver in the case at bar satisfies these requirements. As we already mentioned, we find the terms of the waiver in this case were sufficiently clear to put the person signing it on notice. We agree with the trial court that Eric effectively waived all claims based on negligence by signing the waiver form. Thus, Bishop's third assignment of error is without merit.
The court found the release to be valid and blocked the negligence claims of the plaintiff's. The court then looked at the plaintiff's argument that the actions of the defendants were willful and wanton.
Willful and wanton misconduct has been defined by the Ohio Supreme Court as the equivalent to reckless conduct. An actor's conduct is reckless when "he does an act or intentionally fails to do an act which it is his duty *** to do, knowing or having reason to know of facts which could lead a reasonable man to realize, not only that his conduct creates an unreasonable risk of physical harm to another, but also that such risk is substantially greater than that which is necessary to make his conduct negligent." "An act is negligent if it 'falls below a standard established by the law for the protection of others against unreasonable risk of harm." While the act must be intended by the actor to be reckless, "the actor does not intend to cause the harm which results from it."
Consequently, the court found the actions did not rise to the level of being willful and wanton.
The plaintiff also argued, through its expert witness that the release was void for violating several state and county rules and regulations. The court spent a fair amount of time reviewing this and basically said not a chance.
The first regulations were not in place at the time of the accident, so they could not be used to prove negligence. "This court has held that "subsequent remedial measures are not admissible to prove negligence or culpable conduct in connection with the event at issue."
The next issue was the health department of the county where the accident occurred, based upon a state statute issued regulations requiring additional lifeguards and life boats. The court again through this out because the statute did not require it, and the health department did not have statutory requirement to issue safety rules. (This section seemed down right fishy!)
A plain reading of both statutes clearly indicates that neither expressly delegates to public health departments the authority to regulate public swimming areas. Moreover, even if we were to presume that public swimming areas fell under the ambit of the more general authority of R.C. 3709.21, the authority to regulate under this statute is limited only to public health matters, and not matters of public safety.
The court then when back and looked at the willful and wanton conduct issue because the decedent was a business invitee under Ohio's Land Owner Liability laws.
The threshold issue in determining willful and wanton misconduct is to determine what legal duty Kelley owed Eric as a visitor to the park. Since Eric paid an admission charge to Kelley for the purpose of swimming at the park, it is clear that Eric was a business invitee on the day of his drowning. The Supreme Court of Ohio has defined a business invitee as "one rightfully on the premises of another for the purposes in which the possessor of the premises has a beneficial interest."
A landowner owes a business invitee the duty to exercise ordinary care and to maintain the premises in a safe condition.
Under common law, the duty owed by an owner of a premises to a business invitee is to "exercise ordinary care and to protect [the invitee] by maintaining the premises in a safe condition.
Again, the court could not find the actions of the defendants amounted to willful and wanton care.
The difference between negligence and willfulness is a difference in kind and not merely a difference in degree *** in order to establish wantonness; the conduct must be supported by evidence that shows a disposition to perversity, such as acts of stubbornness, obstinacy or persistency in opposing that which is right, reasonable, correct or generally accepted as a course to follow in protecting the safety of others") (emphasis added). Though the circumstances surrounding Eric's death are, indeed, unfortunate, "willful conduct implies design, set purpose, intention, or deliberation," and "wanton conduct comprehends an entire absence of all care for the safety of others and a complete indifference to the consequences of the allegedly negligent act."
There were two dissenting opinions in the case. Both dissenting judges approved the majority's reasoning in counts one and three of the opinion. However, they both found fault with the second count. The second issue was the requirements by the state to have more lifeguards and a boat on the water. One found the way the argument was raised was insufficient; the second found that there was a genuine issue of fact.
You know you have a bad release when an appellate court tells you so. In this case the defendant squeaked by and still won. The release language needed to be corrected, by an attorney. The release needed to be in larger print and now as a sign-in sheet but as a proper release. The decision also mentioned the decedent, and his friends were not given a copy of the release.
The other issue was the rules adopted by the county and the state. It does not matter who adopts the rules, State, County or if labeled standards groups of people, if they require you to operate a different way, you better change your ways. Here two judges felt the case should be sent back to trial, even though the way the rules were implemented was declared invalid by the majority.
You may not have the luxury of having a court tell you those rules you can ignore. If it is issued by someone with a seal in the letterhead, you better follow it.
The defendant got luck in this one.
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Posted: August 14, 2016 | Author: Recreation Law | Filed under: Legal Case, Ohio, Release (pre-injury contract not to sue), Swimming | Tags: drowning, Lifeguard, Ohio, Reckless, Release, Sign in Sheet, swimming, Willful & Wanton | Leave a comment
Robert Bishop, Executor of the Estate of Eric E. Bishop, Deceased, et al., Plaintiffs-Appellants, – vs – Nelson Ledges Quarry Park, Limited, et al., Defendants-Appellees.
CASE NO. 2004-P-0008
COURT OF APPEALS OF OHIO, ELEVENTH APPELLATE DISTRICT, PORTAGE COUNTY
2005-Ohio-2656; 2005 Ohio App. LEXIS 2504
May 27, 2005, Decided
COUNSEL: J. W. Fodor, Warren, OH (For Plaintiffs-Appellants).
James T. Millican, II, Weston, Hurd, Fallon, Paisley & Howley, Cleveland, OH (For Defendants-Appellees).
JUDGES: DIANE V. GRENDELL, J. DONALD R. FORD, P.J., concurs with a Concurring Opinion. CYNTHIA WESTCOTT RICE, J., concurs in part, dissents in part, with a Concurring/Dissenting Opinion.
OPINION BY: DIANE V. GRENDELL
DIANE V. GRENDELL, J.
[*P1] Plaintiff-appellant, Robert Bishop ("Bishop"), appeals from the judgment of the Portage County Common Pleas Court granting summary judgment in favor of defendants-appellees, Nelson Ledges Quarry Park, Ltd. ("Nelson Ledges") and Evan Kelley ("Kelley"). We affirm the decision of the trial court.
[*P2] The appeal before this court arises from the tragic drowning death of Eric Bishop ("Eric"), which occurred at Nelson Ledges Quarry Park ("the park") on July 31, 2000.
[*P3] The park is a campground, situated on approximately 110 acres, and includes a 30 acre swimming lake for its patrons. The park is owned by Nelson Ledges, an Ohio Limited Liability Corporation, owned by Joretta ("Joretta") [**2] and Glenn ("Glenn") Frohring. The park is operated by J&E Management, ("J&E"), a sole proprietorship owned and operated by Kelley, Joretta's son and Glenn's stepson.
[*P4] The relevant facts of the incident are as follows. On the afternoon of July 31, 2000, Eric and five of his friends came to Nelson Ledges to swim. Upon entry to the park, each vehicle is stopped at the gate. A fee of $ 5 is collected from each visitor and each visitor is required by a park employee to sign a sign-in sheet, containing a waiver of liability clause, before entry to the park is granted. If some of the visitors are children, their parent, or another responsible adult, is required to sign the form.
[*P5] The top portion of the sign-in sheet contains a waiver of liability statement in print which fits within the top approximately two-and-a-half to three inches of the sheet, including margin spaces, with rectangular spaces for the signatures of park patrons contained below. The sign-in sheet is kept with park employees. The waiver language at the top of the sign-in sheet, states as follows:
NELSON LEDGES QUARRY PARK LIABILITY WAIVER FORM
Persons under 18 years of age must have an adult/guardian [**3] sign for them
CUSTOMERS AND COMPANY AGREE: When you enter Nelson Ledges Quarry Park, LLC, you agree that it is at your sole risk; that you will abide by all the park rules; that you will retain care and control of your car: its parts and contents. Company is not responsible for your car, articles left in your car, loss of use; all liability for any loss including but not limited to, any loss arising from bodily injury, personal injury or drowning. (Emphasis added). We the company do not accept responsibility of any personal injury or loss caused due to the influence of alcohol or other mind altering substances, or food consumed from private vendors. NO ILLEGAL SUBSTANCES ARE PERMITTED IN THE CAMPGROUND. I/We hearby (sic) release Nelson Ledges Quarry Park LLC and J&E Management from any liability whatsoever arising from use of the park. No employee may modify any of the terms herein. 1
1 The language of the waiver is reproduced verbatim. No attempt is made herein to reproduce the type or font size as they actually appear on the sign-in sheet. This is a matter of argument in the respective briefs submitted to this court.
[*P6] [**4] It is undisputed that Eric, who was eighteen years of age, and his friends all signed the sheet prior to their admission to the park on the day of the incident. Once inside the park, Eric and his friends decided not to go to the designated beach area, but instead decided to go to another area, called the "stony outcropping" or alternatively, the "drive-down area". There is a small island located in the water about 40 to 50 yards from the shore of the "drive down" area. Shortly after arriving, Eric and two of his friends decided to swim out to the island.
[*P7] Eric began to experience difficulty about 10 to 15 feet short of the island, and began thrashing about and calling for help. His friends, who had reached the island before Eric, at first thought that he was goofing around. When they realized he was serious, his friends dove into the water to try to save him. Despite his friends' efforts to save him, Eric slipped under the water. People on the shore who witnessed the incident ran off to summon park personnel for help.
[*P8] Within a few minutes after arriving, park personnel, who were certified in lifesaving, located Eric about 10-15 feet away from the spot where [**5] he had initially gone under the water. Park personnel then took Eric back toward the island, so that they could try to resuscitate him, but they were unsuccessful. All of these events, from the time Eric began to experience trouble, to the time park personnel attempted to revive him, took place within the span of 17 to 20 minutes.
[*P9] On June 10, 2002, Bishop and his wife Janine, as co-executors of their son Eric's estate, filed wrongful death action, pursuant to R.C. 2125.01 et. seq. against Nelson Ledges Quarry Park, LLC, Glenn and Joretta, and Kelley, alleging that all named defendants were negligent, and that their negligence was the direct and proximate cause of Eric's death.
[*P10] On October 1, 2003, Nelson Ledges, Glenn and Joretta, and Kelley collectively moved for summary judgment.
[*P11] Bishop then filed a memorandum in opposition to summary judgment, attaching as support an affidavit from Tom Griffiths, Ed.D. ("Griffiths"), an aquatic safety expert, along with a report, incorporated by reference, in which Griffiths testified to "a high degree of aquatic certainty," that "the conduct of allowing swimming in unrestricted areas, given the [**6] numerous instances highlighted in this report regarding the failure of the defendants to comply with even the most basic water safety requirements *** created a risk that was substantially greater than that which is necessary to make their conduct simply negligent."
[*P12] On January 12, 2004, the trial court, after reviewing all of the pleadings, motions, and evidence filed, issued a four page order and judgment entry granting summary judgment in favor of all of the defendants. After setting forth the standards for summary judgment, the court made the following conclusions of law: 1) That defendants Glenn and Joretta Frohring are entitled to summary judgment, pursuant to R.C. 1705.48(A) and (B), since they are principals of a limited liability company 2. 2) That, even when reviewing all of the evidence in the light most favorable to the plaintiff, including the report of Tom Griffiths, defendants' conduct did not rise to a level of reckless, willful or wanton conduct, but at most, suggested there may be a genuine issue of material fact as to negligence. 3) The waiver was valid, as a matter of law, thus, Eric waived all claims of negligence, and Bishop [**7] was barred from recovering on the wrongful death claim.
2 On appeal, Bishop's counsel admitted at oral argument and in their brief that Glenn and Joretta Frohring would not be personally liable as principals of a limited liability company under R.C. 1705.48 (A). Therefore, this court, sua sponte, formally dismisses the Frohrings as parties to this appeal.
[*P13] Bishop timely appealed and raised the following assignments of error:
[*P14] "[1.] The trial court erred in failing to apply the standards for determination of motions for summary judgment.
[*P15] "[2.] The trial court erred in granting summary judgment in favor of appellee Nelson Ledges Quarry Park, Ltd. based on alleged lack of possession or control of leased premises.
[*P16] "[3.] The trial court erred in granting summary judgment for appellees on the ground that a valid release executed by Eric Bishop released appellees from liability."
[*P17] As all of Bishop's assignments of error question the propriety [**8] of the trial court's grant of summary judgment, we will first address the applicable standards of review.
[*P18] [HN1] "Summary judgment is a procedural device to terminate litigation and to avoid formal trial when there is nothing to try. It must be awarded with caution." Murphy v. Reynoldsburg (1992), 65 Ohio St.3d 356, 358-359, 1992 Ohio 95, 604 N.E.2d 138. Summary judgment is proper when three conditions are satisfied: 1) there is no genuine issue of material fact; 2) the moving party is entitled to judgment as a matter of law; and 3) reasonable minds can come to but one conclusion, and that conclusion is adverse to the party against whom the motion form summary judgment is made. See, Harless v. Willis Day Warehousing Co. (1976), 54 Ohio St.2d 64, 66, 375 N.E.2d 46; Civ.R. 56(C). [HN2] "If the moving party fails to satisfy its initial burden, the motion for summary judgment must be denied. However, if the moving party has satisfied its initial burden, the nonmoving party then has a reciprocal burden outlined in Civ.R.56(E) to set forth specific facts showing that there is a genuine issue for trial, and if the nonmovant does not so respond, summary judgment, [**9] if appropriate, shall be entered against the nonmoving party." Dresher v. Burt, 75 Ohio St.3d 280, 293, 1996 Ohio 107, 662 N.E.2d 264. [HN3] In reviewing a motion for summary judgment, the court must construe the evidence in the light most favorable to the nonmoving party. Doe v. Shaffer, 90 Ohio St.3d 388, 390, 2000 Ohio 186, 738 N.E.2d 1243. Moreover, an appellate court conducts a de novo review of the trial court's decision to grant summary judgment. Id. Thus, we, as an appellate court, owe no deference to the conclusions of the trial court.
[*P19] [HN4] In order to prevail in a wrongful death cause of action, the personal representative of the decedent must prove these elements: "1) a wrongful act, neglect or default of defendant which proximately caused the death and which would have entitled the decedent to maintain an action and recover damages if death had not ensued; 2) that a decedent was survived by a spouse, children, parents, or other next of kin; and 3) that the survivors suffered damages by reasons of the wrongful death." McCormac, Wrongful Death in Ohio § 2.02. Bishop's assignments of error challenge the court's conclusions related to the first element, which may sound in either [**10] negligence or willful misconduct.
[*P20] For the purposes of judicial economy, Bishop's assignments of error will be discussed out of order.
[*P21] In his third assignment of error, Bishop claims that the trial court improperly granted summary judgment, because there is a genuine issue of material fact with respect to the validity of the release executed by Eric on the day he drowned. We note at the outset, that Bishop does not argue that Eric did not sign the waiver form. However, Bishop does argue that if the exculpatory provisions in this waiver were strictly construed, the waiver would fail as a matter of law, because the intent to release the party was not expressed in clear and unequivocal terms. We disagree.
[*P22] [HN5] It is well-settled in Ohio that participants in recreational activities and the proprietor of a venue for such an activity are free to enter into contracts designed to relieve the proprietor from responsibility to the participant for the proprietor's acts of negligence, but not for his willful or wanton misconduct. See, Bowen v. Kil-Kare, Inc. (1992), 63 Ohio St.3d 84, 585 N.E.2d 384 (auto racing); Zivich v. Mentor Soccer Club, Inc., 82 Ohio St.3d 367, 1998 Ohio 389, 696 N.E.2d 201 [**11] (soccer); King v. United Skates of America (Nov. 10, 1994), 11th Dist. No. 93-L-199, 1994 Ohio App. LEXIS 5089 (roller skating); Cain v. Cleveland Parachute Training Ctr. (1983), 9 Ohio App.3d 27, 9 Ohio B. 28, 457 N.E.2d 1185 (skydiving); Schwartzentruber v. Wee-K Corp. (1997), 117 Ohio App. 3d 420, 690 N.E.2d 941 (horseback riding). Clauses limiting liability shall ordinarily be construed strictly against the drafting party. Glaspell v. Ohio Edison Co. (1987), 29 Ohio St.3d 44, 29 Ohio B. 393, 505 N.E.2d 264 at paragraph one of syllabus, ; Cain, 9 Ohio App.3d at 28. Moreover, [HN6] matters involving the interpretation of contract terms, when such terms are unambiguous, are questions of law. See, Nationwide Mut. Fire Ins. Co. v. Guman Bros. Farm, 73 Ohio St.3d 107, 108, 1995 Ohio 214, 652 N.E.2d 684.
[*P23] Reviewing the terms of the waiver language in the light most favorable to Bishop, we hold that there is no genuine issue of material fact related to the validity of the waiver that Eric signed. While inartfully drafted, the sheet Eric signed is clearly labeled at the top as a "Liability Waiver Form" in bold type. Moreover, the form states, in relevant part, that the company and [**12] customers agree that the company is not responsible for, "all liability for any loss, including, *** any loss arising from *** drowning." (Emphasis added). Thus, any person signing the waiver sheet was on notice that the company was attempting to disclaim all liability for drowning, which is certainly a foreseeable risk of the activity. The term, "all liability" in this case is sufficient to encompass a loss from drowning due to any alleged negligence on the part of Nelson Ledges or Kelley. See, e.g. Schwartzentruber, 117 Ohio App.3d at 425 [HN7] (although "the better practice would certainly be to expressly state the word 'negligence' somewhere in the exculpatory provision *** the absence of that term does not automatically render the provision fatally flawed.") For the reasons mentioned in Bowen, such a broad disclaimer of liability would not, as a matter of law, operate to relieve them from willful or wanton misconduct. Moreover, the obvious purpose of the writing on the document was to release Nelson Ledges and Kelley, d.b.a. J&E, from liability. This argument is not well-taken.
[*P24] Bishop additionally argues that the waiver cannot pass [**13] the test of clarity, since the exculpatory provisions appear in extremely small type. We disagree. Bishop, relying on the California case, Link v. NASCAR, Inc., (Cal.App.1984), 158 Cal. App. 3d 138, 205 Cal. Rptr. 513, argues that if an express release is not easily readable, then it is not enforceable. Bishop's reliance on Link is misplaced.
[*P25] We first note that [HN8] the rules of law from other states are not controlling in Ohio, but may be used as persuasive authority, particularly when deciding a case of first impression. Certain facts of Link are similar to the instant case, in that the suit was brought for wrongful death as the result of injuries the deceased received after he had signed a waiver sheet which had places for multiple signatures. However, the purported releases that the deceased in Link signed were printed in five-and-one-half point type and could not easily be read by persons of ordinary vision. Furthermore, the court in Link found that the language was so lengthy and convoluted, it was almost incomprehensible to the average person. In deciding the case, the court in Link relied heavily on numerous provisions of the California Civil Code, which [**14] regulate the size of the type to be used in contract provisions, to support their argument. [HN9] Ohio has no such provisions. While we agree in broad principle that contract provisions, particularly those which purport to waive liability, should be printed in type large enough for a person of normal vision to read easily, the waiver in the case at bar satisfies these requirements. As we already mentioned, we find the terms of the waiver in this case were sufficiently clear to put the person signing it on notice. We agree with the trial court that Eric effectively waived all claims based on negligence by signing the waiver form. Thus, Bishop's third assignment of error is without merit.
[*P26] Under Bishop's first assignment of error, he argues that even if the court was correct in declaring that the waiver is valid as a matter of law, summary judgment should not have been granted, since the report of Bishop's aquatic safety expert raised a genuine issue of material fact as to whether Kelley and Nelson Ledges engaged in willful and wanton misconduct. We disagree.
[*P27] We note at the outset, that since we have found Eric's waiver of liability to be effective against negligence claims, [**15] Griffiths' report may only be used to demonstrate willful and wanton misconduct. [HN10] Willful and wanton misconduct has been defined by the Ohio Supreme Court as the equivalent to reckless conduct. Thompson v. McNeill (1990), 53 Ohio St.3d 102, 104 n.1, 559 N.E.2d 705. An actor's conduct is reckless when "he does an act or intentionally fails to do an act which it is his duty *** to do, knowing or having reason to know of facts which could lead a reasonable man to realize, not only that his conduct creates an unreasonable risk of physical harm to another, but also that such risk is substantially greater than that which is necessary to make his conduct negligent." Id. at 104-105 (citation omitted) (emphasis added). [HN11] "An act is negligent if it 'falls below a standard established by the law for the protection of others against unreasonable risk of harm." Id. at 103 (citation omitted). While the act must be intended by the actor to be reckless, "the actor does not intend to cause the harm which results from it." Id. at 105 (citation omitted). Moreover, the risk itself must be "an unreasonable one under the circumstances." Id. (emphasis sic).
[*P28] [**16] [HN12] An expert opinion may be incorporated by reference into a motion for summary judgment by means of a properly framed affidavit. See, e.g., Rogoff v. King (1993), 91 Ohio App.3d 438, 446, 632 N.E.2d 977. However, it is axiomatic that facts presented in affidavits supporting or opposing summary judgment must be of the type which would be admissible at trial. Civ.R. 56(E); Nu-Trend Homes, Inc. v. Law Offices of DeLibera, Lyons, & Bibbo, 10th Dist. No. 01AP-1137, 2003 Ohio 1633, at P71.
[*P29] Griffiths' report makes reference to recommendations made by the Portage County Health Department ("the Department"), which is responsible for establishing licensing and health requirements for bathing beaches in the county. Kelley's duty as operator of the park is predicated by regulations set by the Department. The referenced recommendations were suggested improvements made by the Department in 2001, almost an entire year after Eric's accident, and a major portion of Griffiths' report is devoted to Kelley's response to these recommendations.
[*P30] This court has held that [HN13] "subsequent remedial measures are not admissible to prove negligence [**17] or culpable conduct in connection with the event at issue." DiCesare v. Trumbull Cty. Bd. of Commrs. (Dec. 19, 1986), 11th Dist. Nos. 3620 & 3622, 1986 Ohio App. LEXIS 9404, at *6, citing Evid.R. 407. Thus, none of the evidence of subsequent measures in Griffiths' report is admissible under Evid.R. 407 to prove negligence or culpable conduct in connection with Eric's drowning.
[*P31] Griffiths' report also bases its conclusion, in part, on Resolution 95-01, which was promulgated by the Department and in effect at the time of the accident. Specifically, Griffiths' points to the provisions of Resolution 95-01 which called for "one or more qualified lifeguards for each 300 linear feet of occupied bathing beach" to be on duty and "when swimming outside of designated swimming and diving areas *** is permitted *** at least one rescue boat, or rescue board shall be provided and manned with a qualified lifeguard."
[*P32] Kelley and Nelson Ledges do not dispute that there was only one lifeguard on the beach and no one patrolling in a kayak, at the time of the accident, even though there were staff working at the park [**18] that day who were certified lifeguards. The reason given for only one lifeguard on duty that day was that it was a slow day, as it had rained earlier that morning. The sole lifeguard on duty that day was stationed at the beach, watching over children who were swimming in the designated swimming area.
[*P33] However, the absence of a rescue boat on duty on the date of Eric's drowning, as required by Resolution 95-01 does not create a genuine issue of material fact as to whether Kelley's or Nelson Ledges' conduct was willful and wanton. To hold otherwise would misconstrue the meaning of the term "standard established by law for the protection of others," pursuant to Thompson.
[*P34] The threshold issue in determining willful and wanton misconduct is to determine what legal duty Kelley owed Eric as a visitor to the park. Since Eric paid an admission charge to Kelley for the purpose of swimming at the park, it is clear that Eric was a business invitee on the day of his drowning. [HN14] The Supreme Court of Ohio has defined a business invitee as "one rightfully on the premises of another for the purposes in which the possessor of the premises has a beneficial interest." Scheibel v. Lipton (1951), 156 Ohio St. 308, 102 N.E.2d 453, [**19] at paragraph one of the syllabus; Monaco v. Red Fox Gun Club, Inc., 11th Dist. No. 2000-P-0064, 2001 Ohio App. LEXIS 6008, at *21, 2001 Ohio 4040.
[*P35] [HN15] Under common law, the duty owed by an owner of a premises to a business invitee is to "exercise ordinary care and to protect [the invitee] by maintaining the premises in a safe condition." Id. at *21-*22. Thus, the next question then becomes, whether Resolution 95-01 imposes an additional legal duty on Kelley over and above the common-law duty of ordinary care.
[*P36] [HN16] Courts in Ohio uniformly recognize that the violation of legislative enactments which create a specific and mandatory duty for the protection of others constitutes negligence per se. Klyn v. Aruta (1986), 34 Ohio App.3d 152, 154, 517 N.E.2d 992; Tome v. Berea Pewter Mug, Inc. (1982), 4 Ohio App.3d 98, 103, 4 Ohio B. 181, 446 N.E.2d 848; Parker v. Copey's Butcher Shop (Dec. 14, 1992), 2nd Dist. No. 2820, 1992 Ohio App. LEXIS 6496, at *6; Starost v. Bradley (Jan. 29, 1999), 2nd Dist. No. 17319, 1999 Ohio App. LEXIS 324, at *12 ("proof of negligence per se means that the Defendant possessed a duty imposed by statute [**20] and breached that duty"). Thus, in cases where a mandatory legal duty is imposed by statute, the "specific requirements of the statute or ordinance replace the rule of ordinary care." Kehrer v. McKittrick (1964), 176 Ohio St. 192, 198 N.E.2d 669. (emphasis sic).
[*P37] [HN17] According to their express terms, Resolution 95-01 and the regulations created thereunder were adopted by the Portage County Department of Health for the licensing and health requirements of bathing beaches. The resolution purportedly derives its power to adopt regulations under the authority of R.C. 3707.01 and R.C. 3709.21, as well as under Ohio Administrative Code 3701-31-10.
[*P38] [HN18] R.C. 3707.01 charges boards of health of cities or general health districts with the obligation of "abating and removing all nuisances within its jurisdiction," granting such boards the authority to "regulate the location, construction, and repair *** of yards, pens, and stables, and of water closets, privies, cesspools, sinks, plumbing and drains."
[*P39] R.C. 3709.21 provides, in relevant part, that [HN19] "the board of health [**21] of a general health district may make such orders and regulations as are necessary for *** the public health, the prevention and restriction of disease, and the prevention, abatement, or suppression of nuisances."
[*P40] [HN20] A plain reading of both statutes clearly indicates that neither expressly delegates to public health departments the authority to regulate public swimming areas. Moreover, even if we were to presume that public swimming areas fell under the ambit of the more general authority of R.C. 3709.21, the authority to regulate under this statute is limited only to public health matters, and not matters of public safety. Jackson v. City of Franklin (1991), 72 Ohio App.3d 431, 446, 594 N.E.2d 1018 ("R.C. 3709.21 does not authorize a board of health to regulate matters pertaining to public safety.") Furthermore, as mentioned earlier, the regulation also purports to rely on [HN21] former Ohio Adm. Code 3701-31-10 3, regulating "other public bathing places," which was repealed in January of 1996, over four years before the current incident occurred. See 1995-1996 Ohio Monthly Record 1-1110, eff. Jan. 1, 1996. Thus, any attempt [**22] by the Portage County Board of Health to promulgate and enforce safety regulations under either of the aforementioned statutes or the administrative code section, would be without legal effect.
3 [HN22] Ohio Adm. Code 3701-31-01 et. seq. is authorized by R.C. Chapter 3749.02, which was enacted in 1987. R.C. 3749.02 grants public health departments the right to regulate "the issuance of licenses, *** sanitation, safety, and operation of public swimming pools, public spas, and special use pools." R.C. 3749.02 (emphasis added). We note, however, that according to R.C. 3749.01, "public swimming pools", "spas," and "special purpose pools" have specifically defined meanings. Although 3749.01(J) defines "public bathing areas" as "an impounding reservoir, basin, lake, pond, creek, river, or other similar natural body of water," no other section within R.C. Chapter 3749 makes any mention of "public bathing areas." Thus, we can only conclude that a public health department's regulation of "public bathing areas" is not specifically authorized by this chapter. See also, 1994 Ohio Atty. Gen. Ops. No. 94-044. ("A public bathing beach *** is not subject to regulation under R.C. Chapter 3749, unless such beach constitutes a 'public swimming pool,' as defined in R.C. 3749.01(G), a 'public spa,' as defined in R.C. 3749.01(H), or a 'special use pool,' as defined in R.C. 3749.01(I)."
[*P41] [**23] Even if we were to assume that the administrative code section to which Resolution 95-01 cites was a valid means of enacting sufficiently specific safety regulations, [HN23] administrative code sections cannot, as a matter of law, be used to support a finding of negligence per se. Jaworowski v. Medical Radiation Consultants (1991), 71 Ohio App.3d 320, 329, 594 N.E.2d 9 ("The only 'laws' in Ohio which historically have been held to create specific and mandatory duties the violation of which constitutes negligence per se are legislative enactments, not administrative regulations.") (citations omitted); see also, Whitener v. Firwood Investment Co. (Sep. 13, 1995), 2nd Dist. No. 14938, 1995 Ohio App. LEXIS 3986, at *22. Thus, we find that in the absence of valid and enforceable safety regulations, Kelley's legal duty was one of ordinary care, i.e., an ordinary negligence standard of care.
[*P42] Since we have already determined that Eric validly waived all claims sounding in negligence, we see no conceivable means by which the requirements of Resolution 95-01 may be used, to find that Kelley's conduct rose to the level of willful and wanton misconduct. See [**24] Roszman v. Sammett, (1971), 26 Ohio St.2d 94, 96-97, 269 N.E.2d 420 [HN24] ("The difference between negligence and willfulness is a difference in kind and not merely a difference in degree *** in order to establish wantonness, the conduct must be supported by evidence that shows a disposition to perversity, such as acts of stubbornness, obstinacy or persistency in opposing that which is right, reasonable, correct or generally accepted as a course to follow in protecting the safety of others") (emphasis added). Though the circumstances surrounding Eric's death are, indeed, unfortunate, [HN25] "willful conduct implies design, set purpose, intention, or deliberation," and "wanton conduct comprehends an entire absence of all care for the safety of others and a complete indifference to the consequences of the allegedly negligent act." Rinehart v. Federal Nat'l Mortgage Assn. (1993), 91 Ohio App. 3d 222, 229, 632 N.E.2d 539 (citations omitted). Since there is nothing in the record supporting a finding that Kelley's conduct was willful or wanton as a matter of law, Bishop's first assignment of error is without merit.
[*P43] In his second assignment of error, Bishop alleges that Nelson Ledges maintained [**25] significant possession and control over the park as lessor and is therefore liable for Eric's death. Since we determined in assignments of error one and three that Eric validly waived all claims sounding in negligence, and Kelley's conduct as operator and lessee of the park did not rise to the level of willful and wanton misconduct, there is no liability to be imputed to Nelson Ledges. Bishop's second assignment of error is without merit.
[*P44] For the foregoing reasons, we affirm the judgment of the Portage County Court of Common Pleas.
DONALD R. FORD, P.J., concurs with a Concurring Opinion.
CYNTHIA WESTCOTT RICE, J., concurs in part, dissents in part, with a Concurring/Dissenting Opinion.
CONCUR BY: DONALD R. FORD; CYNTHIA WESTCOTT RICE (In Part)
DONALD R. FORD, P.J., concurring.
[*P45] Although I concur with the majority, I believe that the following language cited in the opinion is subject to further qualification. The majority states that: "an expert opinion may be incorporated by reference into a motion for summary judgment by means of a properly framed affidavit. See e.g., Rogoff v. King (1993), 91 Ohio App.3d 438, 446, 632 N.E.2d 977. However, it is axiomatic that [**26] facts presented in affidavits supporting or opposing summary judgment must be of the type which would be admissible at trial. Civ.R. 56(E), Nu-Trend Homes, Inc. v. Law Offices of DeLibera, Lyons, and Bibbo, 10th Dist. No. 01AO-1137, 2003 Ohio 1633, at 71."
[*P46] This writer notes that when there is no timely objection to submissions that otherwise could be excluded, the trial court might include such material in its analysis regarding a decision on a motion for summary judgment. Rodger v. McDonald's Restaurants of Ohio, Inc. (1982), 8 Ohio App.3d 256, 8 Ohio B. 347, 456 N.E.2d 1262, at paragraph one of the syllabus; Chiles v. Cuyahoga Community College (Dec. 5, 1996), 8th Dist. No. 70658, 1996 Ohio App. LEXIS 5466, at *4; Christe v. GMS Mgt. Co., Inc. (1997), 124 Ohio App. 3d 84, 90, 705 N.E.2d 691; Sreshta v. Kaydan (May 6, 1999), 8th Dist. No. 74081, 1999 Ohio App. LEXIS 2066, at *6-*7; Jarrell v. Englefield (Mar. 17, 2000), 11th Dist. No. 98-P-0105, 2000 Ohio App. LEXIS 1076, at *2; Ryser v. Conrad (Mar. 31, 2000), 11th Dist. No. 98-T-0088, 2000 Ohio App. LEXIS 1428, at *8; Kanu v. George Dev., Inc., 6th Dist. Nos. L-02-1140 and L-02-1139, 2002 Ohio 6356, at P13. [**27] (Citations omitted.)
DISSENT BY: CYNTHIA WESTCOTT RICE (In Part)
CYNTHIA WESTCOTT RICE, J., concurring in part, dissenting in part.
[*P47] I concur with the majority's resolution of appellant's first and third assignments of error as they relate to the validity of the waiver Eric signed and its release of appellees from claims sounding in negligence. I dissent with respect to the resolution of appellant's second assignment of error.
[*P48] As Judge Ford correctly notes in his concurring opinion, "when there is no timely objection to submissions that might otherwise be excluded, the trial court might include such material in its analysis regarding a decision on a motion for summary judgment."
[*P49] Here, appellees failed to raise any objection to Griffith's reference to recommendations made by the Portage County Health Department and the trial court could include such material in its analysis.
[*P50] Further, the majority concedes appellees were in violation of Resolution 95-01 at the time Eric drowned, yet summarily conclude that this evidence, "while likely sufficient to support a finding of negligence per se *** [is] insufficient as a matter of law, to find Kelly's conduct [**28] rose to the level of willful and wanton misconduct."
[*P51] The majority defines willful and wanton conduct as equivalent to reckless conduct and then states:
[*P52] "An actor's conduct is reckless when 'he does an act or intentionally fails to do an act which it is his duty *** to do knowing or having reason to know of facts which could lead a reasonable man to realize not only that his conduct creates an unreasonable risk of harm to another, but also that such risk is substantially greater than that which is necessary to make his conduct negligent.' *** An act is negligent if it 'falls below a standard established by law for the protection of others against unreasonable risk of harm.' *** While the act must be intended by the actor to be reckless, 'the actor must not intend to cause the harm which results from it.' *** Moreover, the risk itself must be 'an unreasonable one under the circumstances.'" (Emphasis sic.) Supra, at 10.
[*P53] Here, Resolution 95-01 required a manned rescue boat to be on duty. Appellees concede no manned rescue boat was on duty and this decision was an intentional one. Thus, appellees concede they intentionally failed to do an act they were [**29] required by law to do. Appellant's expert opined that appellees' failure "to comply with even the most basic water safety requirements *** created a risk that was substantially greater than that which is necessary to make their conduct simple negligence."
[*P54] Appellant's expert's opinion establishes a genuine issue of material fact exists as to whether appellees' conduct was willful or wanton. For these reasons, I find appellant's second assignment of error has merit.
Louisiana court holds a tubing operation is not liable for drowning or failure to properly perform CPR. Court finds (or confuses) both no duty owed to prove negligence and assumption of the risk on the part of the deceased.
Posted: June 16, 2014 | Author: Recreation Law | Filed under: Assumption of the Risk, Louisiana, Rivers and Waterways | Tags: Amite River, assumption of the risk, CPR, Custody and Control, drowning, Limited liability company, Livery, Louisiana, Tubing | Leave a comment
Louisiana is one state that does not allow the use of a release. (See States that do not Support the Use of a Release.) This limits the possible defenses in LA.
Parveen v. Tiki Tubing, LLC, 2011 1477 (La.App. 1 Cir. 03/23/12); 2012 La. App. Unpub. LEXIS 115
Date of the Decision: March 23, 2012
Plaintiff: Neelam Parveen, Individually and on Behalf of Mansoor Raja and their Minor Children
Defendant: Tiki Tubing, LLC and Abc Insurance Company
Plaintiff Claims: negligence, gross negligence, 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. Also failure of the employees of the defendant to perform CPR properly.
Holding: for the defendant tubing livery
The plaintiff is the husband of the deceased and mother of their children.
The defendant was a tubing rental (livery) operation on the Amite River in Louisiana. For the fee the defendant provides parking, a bus ride to the put in, tubes and a beach entry and exit. The Amite River is advertised by the defendant on it's website at 1" to 3" deep with 6"-8" holes. The river is slow moving and smooth.
The defendant also states "Tiki . . . and its affiliates assume no liability for personal injury or loss of personal property." The defendant provides life jackets free of charge however customers are not required to wear them. No one was aware of a prior drowning on the river. No employees of the defendant were trained in life saving or first aid or CPR.
The deceased was accompanied by two other companions. One of the three printed the other names on the release. The deceased did not sign the release. The three were also given safety instructions.
The men started leaving their tubes and swimming downstream for a short distance before waiting for the current to bring their tube to them. At some point the deceased went under the surface and did not come up. Eventually an employee found the deceased and got him to the surface.
A companion started CPR and was assisted by four other people including some employees of the defendant.
The plaintiff filed suit which was dismissed after the defendant filed a motion for summary judgment. The plaintiff appealed.
The court outlined the plaintiff's claims as:
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.
Under Louisiana law a tort is defined as:
The elements of a cause of action in tort are fault, causation, and damage. The existence of a legal duty and a breach of that duty are prerequisites to any determination of fault. 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.
The court found that to prove her case the plaintiff must prove:
(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.
Failure to prove one element defeats the plaintiff's claims.
The court first looked at whether or not the defendant had control over the river to be liable for it. The court defines this as the defendant having custody and control over the river. To determine whether the defendant had the requisite custody and control the court held it had to 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. "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." This court has held that a state-owned river cannot be in the custody of a landowner.
Even if the plaintiff could prove the defendant's "custody" of the river, the plaintiff would also have to prove that the river section at issue was defective.
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. Further, "variations in water depth within natural swimming areas are standard." 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. The plaintiff fails to establish that the deeper pocket in this natural body of water constitutes a defect for purposes of Article 2317.1.
The conditions of the river at the time of the decedents drowning were all conditions that under Louisiana law were inherent risks and thus assumed by the deceased.
The court next looked the risks of tubing.
Tubing has been defined as an activity that is obviously and inherently dangerous. Drowning because of currents is a natural and inevitable risk to swimmers in a natural body of water. When a risk is obvious, there is no duty to warn or protect against it.
The court concluded the deceased voluntarily left this tube to swim in the river without a life jacket.
The court then looked at the issue of failure to perform CPR properly. Under Louisiana law if a person voluntarily undertakes a "task that he otherwise has no duty to perform, he must nevertheless perform that task in a reasonable or prudent manner."
Although the plaintiff's expert witness stated that CPR was performed improperly, no one was able to claim that the actions of the defendant 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."
The court found since no one could point that a specific employee or employees had done something wrong in performing CPR then that claim must also fail.
The court upheld the trial courts motion for summary judgment with this statement." 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."
Louisiana law came from the Napoleonic code. Consequently the laws in Louisiana are generally different, other than the protections afforded by the US constitution. Louisiana does not allow the use of a release to stop claims.
C.C. Art. 2004 (2005)
Any clause is null that, in advance, excludes or limits the liability of one party for intentional or gross fault that causes damage to the other party. Any clause is null that, in advance, excludes or limits the liability of one party for causing physical injury to the other party.
See States that do not Support the Use of a Release.
Here the court seemed to combine the issue to find the defendant owed no duty to the deceased and the deceased assumed the risk of the activity which lead to his death, without using the terms specifically.
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Posted: June 8, 2014 | Author: Recreation Law | Filed under: Assumption of the Risk, Legal Case, Louisiana, Rivers and Waterways | Tags: Amite River, assumption of the risk, CPR, Custody and Control, Defendant, drowning, Livery, Louisiana, Tiki, Tiki bar, Tubing | Leave a comment
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.
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
[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.
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.
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.
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Why do people sue? Not for the money.
Posted: July 20, 2010 | Author: Recreation Law | Filed under: Swimming | Tags: Adventure travel, Attorney at law, city, drowning, Lawsuit, Outdoor recreation, parents, summer camp, swimming pool | Leave a comment
Answer their questions and you don't give someone a reason to find a lawyer.
The headline is Parents file suit against city and club. The lawsuit is over the death of a 6 year old boy who drowned in a city pool less than a month before.
Could you predict this lawsuit was going to happen? I think you could if you were the city. Here are four hints that maybe you are going to be sued.
Hint #1 Even the attorney says the lawsuit is to get information.
"From the family's point of view, it has been three weeks (since their son died) and they have no information on what happened," Whitaker said.
"They still don't know what actually happened."
He said the lawsuit seeks monetary damages for wrongful death, but a big part of the filing is to have access to information about how the child died.
"All my clients are hearing right now is second-hand," he said. "It's terrible for them."
Hint #2 If you plan to get sued you will get sued.
City officials referred all questions regarding the lawsuit to City Attorney Allen Betz. An employee at Betz's office said he was out of the office Friday and could not be reached for comment.
Hint #3 If you don't answer a parent's questions you are going to get a lawsuit.
"We just want to know what happened. The family feels the only way they will get answers is through the lawsuit."
Parents wanted to know what happened to their child and the only answers they received was "call the city's attorney." There are three major and stupid reasons for doing this.
1. The attorney was not there and therefore, can't answer any questions.
2. Attorneys don't answer questions anyway.
3. Attorneys intimidate people. Who wants to talk to an attorney?
I know, I'm an attorney!
What was another hint?
Hint #4 The lawsuit was filed 25 days after the death. People never file lawsuits that soon.
Within three weeks of the death, the family has all ready hired an attorney. Whether because they felt so frustrated that they felt they had no choice, or because they had to fight fire with fire (attorney v. attorney) or a combination of reasons, that should be a hint you need to do something or pay attorneys!
The only real legal issue in the article is the miscommunication between the parents and the pool employees.
In the lawsuit, Whitaker said Terry Lavka told a woman stationed at the sign-in table when he took his son there for the summer day camp that Samuel Lavka was afraid of water, could not swim and should not be allowed near the big pool.
"They didn't want him in the pool because he couldn't swim," Whitaker said. "They were told that, and the parents believed those instructions would be followed.
If someone tells you or one of your employees something about their concerns, fees or beliefs about what you are going to do, you need to correct them or pay attention to them. Here the parents believed that because they had told the pool employees something that was the way it was going to be.
This is a tragic accident. A six year old boy drowns in a city pool. The tragedy is compounded because the parents still don't know what happened to their son. Their grief will not end but be compounded for years as the litigation drags on, and they grasp tidbits of answers about what happened.
For other articles about this issue see: It's Not Money and Serious Disconnect: Why people sue.
Copyright 2010 Recreation Law (720) Edit Law, Recreaton.Law@Gmail.com
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